Opinion
October 31, 1994
Appeal from the Supreme Court, Kings County (Owens, J.).
Ordered that the order is affirmed.
The evidence presented against the defendant at trial was entirely circumstantial. The well-settled standard of proof in such cases is that the facts from which the inference of guilt is drawn must be inconsistent with the defendant's innocence and must exclude to a moral certainty every other reasonable hypothesis (People v. Way, 59 N.Y.2d 361, 365; People v. Kennedy, 47 N.Y.2d 196, 202; People v. Benzinger, 36 N.Y.2d 29; People v Cleague, 22 N.Y.2d 363). Since the People tried the defendant on the theory of accessorial liability, i.e., that he acted in concert with his codefendants to cause the shooting death of a young child, and related crimes, they were required to prove to a moral certainty that he acted with the mental culpability of his codefendants and further that he "solicit[ed], request[ed], command[ed], importune[d] or intentionally aid[ed]" at least one of them to engage in the shooting (Penal Law § 20.00; People v Akptotanor, 158 A.D.2d 694, 695; see also, People v. La Belle, 18 N.Y.2d 405).
The People did not meet their burden. Only two witnesses placed the defendant near the apartment building where the child was shot to death close to the time of the crime. The first witness testified that she saw the defendant in the company of some of his codefendants at trial, minutes before she heard shots inside the apartment building. However, she admitted that she had not seen the defendant enter the building. The second witness testified that he saw the defendant in the company of an unidentified male, not one of his codefendants at trial, running from the vicinity of the apartment building a few seconds after the witness heard shots inside. Since neither of these witnesses observed the defendant in the building, or in possession of a gun, or do anything to aid his codefendants in relation to the child's shooting death, the evidence of guilt is legally insufficient to sustain his conviction. Consequently, the court did not err in setting aside the verdict (see, CPL 330.30). Mangano, P.J., Thompson, Sullivan and Miller, JJ., concur.