Opinion
2014-04-2
The PEOPLE, etc., respondent, v. Joseph MARCHENA, appellant.
Lynn W.L. Fahey, New York, N.Y. (Patricia Pazner of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C. Abbot, and Eric A. Boden of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Patricia Pazner of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C. Abbot, and Eric A. Boden of counsel), for respondent.
WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, ROBERT J. MILLER, and HECTOR D. LASALLE, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Blumenfeld, J.), rendered March 22, 2011, convicting him of attempted robbery in the second degree (two counts) and assault in the third degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is modified, on the facts, by vacating the convictions of attempted robbery in the second degree and the sentences imposed thereon, and dismissing those counts of the indictment; as so modified, the judgment is affirmed.
“Upon [a] defendant's request, the Appellate Division must conduct a weight of the evidence review” and, thus, “a defendant will be given one appellate review of adverse factual findings” ( People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1;see People v. Curry, 112 A.D.3d 843, 844, 976 N.Y.S.2d 571;see also Arthur Karger, Powers of the New York Court of Appeals § 21:1 at 744 [3d ed. rev.] 2005). If a finding in favor of the defendant would not have been unreasonable, then this Court “must weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions” ( People v. Danielson, 9 N.Y.3d at 348, 849 N.Y.S.2d 480, 880 N.E.2d 1). “Once this Court conducts such an analysis, it must then decide whether the verdict finding the defendant guilty beyond a reasonable doubt was warranted” ( People v. Curry, 112 A.D.3d at 844, 976 N.Y.S.2d 571). “Essentially,” this Court “sits as a thirteenth juror and decides which facts were proven at trial” ( People v. Danielson, 9 N.Y.3d at 348, 849 N.Y.S.2d 480, 880 N.E.2d 1, citing Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652). If it appears that the fact-finder failed to give the evidence the weight it should be accorded, then this Court may set aside the verdict and dismiss the accusatory instrument or any reversed count ( seeCPL 470.20 [5]; People v. Romero, 7 N.Y.3d 633, 643–644, 826 N.Y.S.2d 163, 859 N.E.2d 902;People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053,cert. denied542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828;People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).
Here, the defendant was convicted of two counts of attempted robbery in the second degree under a theory of accessorial liability. “To sustain a conviction based upon accessorial liability, ‘the evidence ... must prove beyond a reasonable doubt that the accused acted with the mental culpability necessary to commit the crime charged and that, in furtherance thereof, he solicited, requested, commanded, importuned or intentionally aided the principal to commit such crime’ ” ( People v. Farrell, 61 A.D.3d 696, 697, 877 N.Y.S.2d 134, quoting Matter of John G., 118 A.D.2d 646, 646, 499 N.Y.S.2d 800;seePenal Law § 20.00; People v. Mendez, 34 A.D.3d 697, 698, 824 N.Y.S.2d 416;Matter of Bianca W., 267 A.D.2d 463, 464, 700 N.Y.S.2d 497;Matter of Peter J., 184 A.D.2d 511, 512, 584 N.Y.S.2d 195).
Upon the exercise of our factual review power ( seeCPL 470.15), we determine, in the first instance, that acquittal of the charges of attempted robbery in the second degree would not have been unreasonable based upon the evidence presented and, moreover, that the jury failed to accord the evidence the weight it should have been accorded ( see People v. Curry, 112 A.D.3d at 845, 976 N.Y.S.2d 571;People v. McMitchell, 110 A.D.3d 923, 924, 973 N.Y.S.2d 706;People v. Boley, 106 A.D.3d 753, 753, 963 N.Y.S.2d 726). The evidence presented at trial did not establish, beyond a reasonable doubt, that the defendant shared the intent to commit robbery, or that he solicited, requested, commanded, importuned, or intentionally aided the principal in committing the offense of attempted robbery in the second degree. Accordingly, the convictions of attempted robbery in the second degree and the sentences imposed thereon must be vacated, and those counts of the indictment must be dismissed ( see generally People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).
In light of our determination, we need not address the defendant's remaining contentions.