People v. Cabey

• Decision Date: 30 March 1995
• Parties: , 649 N.E.2d 1164 The PEOPLE of the State of New York, Appellant-Respondent, v. Keith CABEY, Respondent-Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 20

626 N.Y.S.2d 20

85 N.Y.2d 417, 649 N.E.2d 1164

The PEOPLE of the State of New York, Appellant-Respondent, v. Keith CABEY, Respondent-Appellant.

Court of Appeals of New York.

March 30, 1995.

Robert T. Johnson, Dist. Atty., Bronx County, Bronx (Andrew J. Shipe and Susan L. Valle, of counsel), for appellant-respondent.

Kaye, Scholer, Fierman, Hays & Handler, New York City (Adam D. Cole, of counsel), E. Joshua Rosenkranz and Mark Gimpel, for respondent-appellant.

OPINION OF THE COURT

SMITH, Justice.

The issue in this case of attempted murder is whether the evidence was legally sufficient to establish defendant's guilt. We conclude that it was and we modify the order of the Appellate Division.

There is evidence in the record that on the night of July 23, 1990, shortly after 10:00 p.m., Shanequa Fanning encountered her ex-boyfriend, Dwayne Henry, outside her building. She agreed to accompany him to meet a mutual friend, defendant Keith Cabey. They met defendant at the apartment building of defendant's cousin, Michael Parsons. Defendant produced keys to the apartment and the three went inside. Henry and the complainant went into a bedroom while defendant remained in the living room watching television. A fight ensued between Henry and the complainant over "why [Ms. Fanning] did not want to be with [Henry] any more." While the two were in the bedroom, Henry physically assaulted, then raped the complainant. Defendant took no part in these actions against the complainant.

At some point during the evening, Henry came out of the back room, removed a gun from his pocket and asked defendant where he could put it. Defendant indicated that he should place it beneath a chair cushion. At another point, Henry, who had been pacing up and down the apartment's hallway, exclaimed in an angry and agitated tone, "We're going to f--- this b---- up". At approximately 11:00 p.m. defendant's cousin, Parsons, returned home. Shortly after Parsons' arrival, the defendant showed him where Henry's handgun had been hidden. As the defendant lifted the chair cushion where the weapon was concealed, he said, "Look what I got".

A while later, defendant told Parsons, "We're leaving now, there might be some problems." As the defendant, Henry and the complainant exited the apartment, defendant immediately headed for the stairwell. Henry shoved the complainant towards the stairwell and then continued to shove her down some six flights of stairs with the defendant following not far behind. Once they had reached the tenth floor landing, Henry stopped and demanded that the complainant kiss him. When she refused, he told her, "You kiss me because it's going to be the last person you ever kiss." He then took out a hand gun and shot the complainant five times in the stomach. Immediately after the shooting, Henry and the defendant ran down several flights of stairs. Moments later, however, they both returned to the tenth floor landing, whereupon Henry shot the complainant two more times, both of them in her back. Henry and the defendant fled separately to Washington, D.C., where they were eventually apprehended.

Defendant was convicted, after a jury trial, of attempted murder in the second degree and criminal possession of a weapon in the third degree. The Appellate Division modified the judgment of the Supreme Court by vacating the conviction for attempted murder in the second degree and dismissing that count of the indictment. The Court determined that the People had failed to establish that defendant shared Henry's intent to kill the complainant or that he participated in the attempt on the complainant's life. Justice Kupferman dissented, concluding that the facts "lead inexorably to the conclusion that the defendant was a party to attempted murder in the second degree" (199 A.D.2d, at 200, 605 N.Y.S.2d 297).

A Justice of the Appellate Division granted the People leave to appeal to this Court and a Judge of this Court granted defendant leave to appeal from the Appellate Division order insofar as it affirmed the conviction for criminal possession of a weapon. Before this Court, defendant now concedes that the evidence was sufficient to establish his constructive possession of a weapon and prays only for an affirmance. Thus, the rest of this opinion focuses only on the People's appeal.

Initially, we note that the standard of review in determining whether the evidence before the jury was legally sufficient to support a finding of guilt beyond a reasonable doubt is whether the evidence, viewed in the light most favorable to the People, could lead a rational trier of fact to conclude that the elements of the crime had been proven beyond a reasonable doubt (People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932; see also, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672; Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560). Contrary to the conclusion of the Appellate Division, this is not a case based solely on circumstantial evidence requiring the finder of fact to establish defendant's guilt to a "moral certainty" (People v. Wong, 81 N.Y.2d 600, 601 N.Y.S.2d 440, 619 N.E.2d 377). Even if this were a case based upon circumstantial evidence alone, the appellate review is the same--whether the evidence, viewed in the light most favorable to the People, could lead a rational trier of fact to conclude that the elements of the crime have been proven beyond a reasonable doubt (People v. Williams, 84 N.Y.2d 925, 620 N.Y.S.2d 811, 644 N.E.2d 1367). Both the complainant and defendant's cousin, Michael Parsons, provided direct evidence of defend...