People v. Smith
| Decision Date | 27 November 1989 |
| Citation | 155 A.D.2d 704,543 N.Y.S.2d 511 |
| Parties | The PEOPLE, etc., Respondent, v. Michael SMITH, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Philip L. Weinstein, New York City (Ellen Dille, of counsel), for appellant.
Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Michael Gore and Sherry Chase-Conant, of counsel), for respondent.
Before BROWN, J.P., and KUNZEMAN, EIBER and KOOPER, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Meyerson, J), rendered June 9, 1987, convicting him of criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree, and reckless endangerment in the first degree, upon a jury verdict, 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.
On October 1, 1985, Detective Fogerty and Officers McInerney and Moral attempted to pull over a four-door, brown Toyota in which the defendant was a passenger. The Toyota sped away, and during the chase which ensued, the officers were fired upon. The evidence adduced at the trial established that the shots were fired from both the driver's side window and the passenger's side window. None of the witnesses was able to identify the shooter with any degree of certainty. During the course of the chase, one of the three occupants of the car tumbled from the back of the Toyota with gun in hand. When he hit the ground, the gun flew out of his hand and landed underneath a parked car. When the Toyota finally came to a halt, the other two males exited through the driver's door. One of those men, identified by Detective Fogerty as the defendant, went into a crouched position with a gun in his hands. Fogerty fired on them, and the two fled on foot. The defendant was ultimately taken into custody.
We agree with the defendant that the evidence adduced was legally insufficient to establish his guilt, either as a principal or as an accomplice, of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree with respect to the gun that was recovered, which is the only gun he was convicted of possessing. None of the officers could testify with any degree of certainty as to where the defendant was sitting in the Toyota and where the shooter was sitting. Thus, the evidence was legally insufficient to establish that the defendant possessed the loaded firearm which was recovered (Penal Law §§ 265.03, 265.02[4]. Nor was the evidence sufficient to establish the defendant's culpability for weapons possession as an accomplice, as that evidence failed to establish beyond a reasonable doubt that the defendant "possessed the mental culpability necessary to...
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