People v. Smith

• Decision Date: 27 September 2011
• Citation: 87 A.D.3d 1169,2011 N.Y. Slip Op. 06867,930 N.Y.S.2d 234
• Parties: The PEOPLE, etc., respondent,v.Timothy SMITH, Jr., appellant.
• Court: New York Supreme Court — Appellate Division

87 A.D.3d 1169
930 N.Y.S.2d 234
2011 N.Y. Slip Op. 06867

The PEOPLE, etc., respondent,
v.
Timothy SMITH, Jr., appellant.

Supreme Court, Appellate Division, Second Department, New York.

Sept. 27, 2011.

[930 N.Y.S.2d 235]

John R. Lewis, Sleepy Hollow, N.Y., for appellant.Janet DiFiore, District Attorney, White Plains, N.Y. (Hae Jin Liu, Lois Cullen Valerio, and Richard Longworth Hecht of counsel), for respondent.WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, CHERYL E. CHAMBERS, and PLUMMER E. LOTT, JJ.

[87 A.D.3d 1169] Appeal by the defendant from a judgment of the County Court, Westchester County (Cacace, J.), rendered June 24, 2009, [87 A.D.3d 1170] convicting him of assault in the second degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law, the indictment is dismissed, and the matter is remitted to the County Court, Westchester County, for the purpose of entering an order in its discretion pursuant to CPL 160.50.

On September 23, 2008, the defendant, with codefendant Stephen Williams and one or two other men, approached the complainant, accused him of being a “snitch,” and began beating and kicking him. When Williams suddenly pulled out a knife, the complainant tried to grab it, cutting himself in the hand in doing so, and knocked it out of Williams's hand and onto the grass, where it remained. The defendant continued to punch the complainant. The attack, which lasted for approximately 30 seconds, ended when police officers arrived.

The defendant was convicted of assault in the second degree (Penal Law § 120.05[2] ) and criminal possession of a weapon in the fourth degree ( see Penal Law § 265.01[2] ). Under the assault count, the People were required to prove intentional causation of physical injury by means of the knife. Under the weapon possession count, the People were required to prove possession of the knife with intent to use it unlawfully. Inasmuch as it was undisputed that the defendant neither possessed nor used the knife at any time, the People relied on a theory of accomplice liability. “To sustain a conviction based upon accessorial liability, ‘the evidence, when viewed in a light most favorable to the prosecution, must prove beyond a reasonable doubt that the accused acted with the mental culpability necessary to commit the crime charged and that, in furtherance thereof, he solicited, requested, commanded, importuned or intentionally...