Opinion
2011-09-1
The PEOPLE of the State of New York, Respondent,v.Robert THOMAS, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Carl S. Kaplan of counsel), for appellant.Cyrus R. Vance, Jr., District Attorney, New York (Grace Vee of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Carl S. Kaplan of counsel), for appellant.Cyrus R. Vance, Jr., District Attorney, New York (Grace Vee of counsel), for respondent.
Judgment, Supreme Court, New York County (Ruth Pickholz, J.), rendered October 22, 2009, convicting defendant, after a jury trial, of assault in the first degree (two counts), assault in the second degree, and criminal possession of a weapon in the second degree, and sentencing him to an aggregate term of 43 years, unanimously modified, on the facts, to the extent of vacating the convictions of assault in the first and second degrees and dismissing those counts of the indictment, and otherwise affirmed.
The assault convictions were against the weight of the evidence ( see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). Defendant was charged with assault in the first and second degrees (Penal Law §§ 120.10[4]; 120.05[6] ) solely on the theory that “[i]n the course of and in furtherance of the commission” of the felony of second-degree weapon possession, he caused serious physical injury or physical injury to the complainants.
The evidence at trial established that defendant fired several shots for no known reason, and apparently at random. Defendant wounded three persons on the street who were strangers to him, and walked away. The evidence did not establish that defendant shot the victims “in furtherance” of the underlying crime of weapon possession ( see People v. Williams, 255 A.D.2d 610, 682 N.Y.S.2d 60 [1998], lv. denied 93 N.Y.2d 880, 689 N.Y.S.2d 442, 711 N.E.2d 656 [1999]; see also Langston v. Smith, 630 F.3d 310, 315–320 [2d Cir.2011] ). There was no evidence that defendant shot the victims to prevent them from disarming him, or that the shooting otherwise “furthered” the weapon possession.
We perceive no basis for reducing the sentence on the weapon possession conviction.