Opinion
January 28, 1985
Appeal from the Supreme Court, Queens County (Sherman, J.).
Judgment reversed, on the law and as a matter of discretion in the interest of justice, the third count of the indictment charging the defendant with criminal possession of a weapon in the fourth degree, i.e., a knife, is dismissed, and the matter is remitted to the Supreme Court, Queens County, for a new trial on the second count of the indictment charging him with criminal possession of a weapon in the fourth degree, i.e., a baseball bat, without prejudice to the People to resubmit any appropriate charges against defendant under the first count of the indictment to another Grand Jury ( People v. Beslanovics, 57 N.Y.2d 726).
Defendant was indicted, together with codefendants Epifanio Vasquez and Carlos Rivera, for murder in the second degree and two counts of criminal possession of a weapon in the fourth degree (i.e., a baseball bat and a knife) arising out of the fatal beating and stabbing of one Thomas Higgins on August 30, 1980 in Far Rockaway. All three men were convicted, after a joint trial, of manslaughter in the first degree as a lesser included offense of the murder count and of both counts of criminal possession of a weapon in the fourth degree. Defendant's convictions must be reversed because, as we held in People v Vasquez ( 104 A.D.2d 429), the trial court committed reversible error when it (1) failed to instruct the jury to consider the evidence of guilt or innocence separately as to each defendant, as required by CPL 300.10 (subd 4) (see People v. Evans, 63 A.D.2d 653), and (2) improperly charged the jury on the issue of accessorial liability by failing to indicate that each defendant had to act with the mental culpability required for the commission of each crime ( People v. Vasquez, supra, pp 429-430; People v. La Belle, 18 N.Y.2d 405; People v. Jones, 89 A.D.2d 876; Penal Law, § 20.00).
Furthermore, the third count of the indictment charging the defendant with criminal possession of a weapon in the fourth degree, i.e., a knife, must be dismissed since there was insufficient evidence, as a matter of law, to permit the jury to find that defendant acted in concert with his codefendant Rivera to possess the knife with the intent to use it unlawfully against another ( People v. Vasquez, supra; cf. People v. Gwynn, 53 A.D.2d 565). The testimony established that Rivera was carrying the knife tucked into his pants behind his belt buckle and that he suddenly pulled the knife from his pants during the beating and stabbed Higgins, immediately after which everyone fled. On this record, where the stabbing appears to have been wholly spontaneous, there was legally insufficient evidence to sustain defendant's conviction of criminal possession of a weapon in the fourth degree under the third count of the indictment.
We have considered the other issues raised by defendant and find them to be without merit. Weinstein, J.P., Brown, Niehoff and Lawrence, JJ., concur.