People v. Cummings

• Decision Date: 29 June 1987
• Parties: The PEOPLE, etc., Respondent, v. Andre CUMMINGS, a/k/a Barrington Stephens, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 225

517 N.Y.S.2d 225

131 A.D.2d 865

The PEOPLE, etc., Respondent, v. Andre CUMMINGS, a/k/a Barrington Stephens, Appellant.

Supreme Court, Appellate Division Second Department.

June 29, 1987.

Philip L. Weinstein, New York City (Theodore S. Green, of counsel), for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Peter A. Weinstein and Sarah G. Noll, of counsel), for respondent.

Before BRACKEN, J.P., and LAWRENCE, RUBIN, EIBER and KUNZEMAN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Sangiorgio, J.), rendered April 26, 1982, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, after a nonjury trial, and imposing sentence.

ORDERED that the judgment is reversed, on the law, the indictment is dismissed, and the case is remitted to the Supreme Court, Kings County, for the purpose of entering an order in its discretion pursuant to CPL 160.50. The findings of fact have been considered and are determined to have been established.

On the evening of October 12, 1979, Vansel Beech was shot to death in front of his apartment building in Kings County. The fatal shots were fired from a gold Trans Am automobile in which the defendant and three other unidentified individuals were seated. It is unknown which of the individuals fired the shots and the murder weapon has never been recovered.

The defendant was charged and subsequently convicted of murder in the second degree and criminal possession of a weapon in the second degree, following a bench trial. On appeal, the defendant contends, inter alia, that the evidence was legally insufficient to sustain these convictions in that there was no proof that he actually fired the fatal shot or that he harbored the requisite mental culpability so as to be held accessorially liable for the crimes charged. Thus, the ultimate question we must decide is whether the evidence presented at trial, when viewed in the light most favorable to the People, was sufficient to support the conclusion that the defendant intended to, and did, in fact, participate in the murder of Vansel Beech.

At trial, Joseph Paquette, the principal witness for the prosecution, testified that a few minutes prior to the shooting, he had left the victim's apartment. As he walked outside, he passed directly in front of a gold Trans Am which was double parked a short distance from the entrance to Vansel Beech's building. Although its headlights were off, Paquette was able to observe that four individuals were seated in the car. Of the four, he only recognized the defendant, having previously engaged in certain drug transactions with him. The defendant was seated in the rear, on the passenger side of the vehicle. Paquette then walked to his own apartment building, which was just across the street, and proceeded up to his second-floor apartment, which faced the street. He peered out the window and from this vantage point observed Vansel Beech step onto the street. Paquette then noticed that the headlights of the Trans Am were turned on, and that the vehicle slowly moved forward until it was directly in front of the entranceway to Beech's building. It was at that moment that Paquette heard several gunshot blasts which, he claimed, emanated from the passenger side window of the two-door vehicle. Paquette watched as Beech fell to the ground. Immediately after the shots were fired, the Trans Am was quickly driven from the scene.

According to the witness, at the time the shots were fired, the defendant had leaned forward in the vehicle toward the front seat area. Paquette testified, however, that he was unable to see the defendant's hands, nor did he see the gun.

Recognizing that there was no proof that the defendant was the actual shooter, the People proceeded on the theory that the defendant had acted in concert with others to cause the death of Vansel Beech.

It is, by now, well settled that in order to hold an accessory liable for the crime committed by the principal actor, the People must establish, beyond a reasonable doubt, that the accessory possessed the mental culpability necessary to commit the crime charged, and that in furtherance thereof, he solicited, requested, commanded, importuned or intentionally aided the principal (see, Penal Law § 20.00; People v. La Belle, 18 N.Y.2d 405, 276 N.Y.S.2d 105, 222 N.E.2d 727; People v. Hayes, 117 A.D.2d 621, 498 N.Y.S.2d 163, lv. denied 68 N.Y.2d 668, 505 N.Y.S.2d 1033, 496 N.E.2d 691; People v. Capella, 111 A.D.2d 179, 488 N.Y.S.2d 808; People v. Karchefski, 102 A.D.2d 856, 476 N.Y.S.2d 916; People v. Reyes, 82 A.D.2d 925, 440 N.Y.S.2d 674). While the People were not obligated to prove that the defendant fired the fatal shot in order to obtain a conviction (see, People v. Brathwaite, 63 N.Y.2d 839, 482 N.Y.S.2d 253, 472 N.E.2d 29), proof that the defendant harbored the specific intent to kill was critical to the People's case for "adequate proof of a shared intent with the principal actor, there is no community of purpose and therefore no basis for finding defendant acted in concert with the actual 'shooter' " (see, People v. McLean, 107 A.D.2d 167, 169, 485 N.Y.S.2d 1019, affd. 65 N.Y.2d 758, 492 N.Y.S.2d 31, 481 N.E.2d 571).

With reference to the facts before us, we find that the People failed to present sufficient evidence, circumstantial or otherwise, to establish that the defendant possessed the requisite intent to kill Vansel Beech. Indeed, the evidence in this case, when considered in the light most favorable to the People, established nothing more than that the defendant was a passenger in the vehicle from which the shots were fired (see, People v. Jones, 89 A.D.2d 876, 453 N.Y.S.2d 233). The defendant's conviction, however, cannot be founded on the mere fact that he was present in the automobile, without further proof that he aided, abetted or otherwise participated in the homicide (see, People v. Slaughter, 83 A.D.2d 857, 441 N.Y.S.2d 832, affd. 56 N.Y.2d 993, 453 N.Y.S.2d 632, 439 N.E.2d 348). In the instant case, this essential proof is lacking. As in People v. Monaco, 14 N.Y.2d 43, 45, 248 N.Y.S.2d 41, 197 N.E.2d 532, "agreement to kill, no purpose to kill, no expressed intent to kill" can be gleaned from the evidence. The People simply failed to prove...