People v. Way

• Citation: 452 N.E.2d 1181,59 N.Y.2d 361,465 N.Y.S.2d 853
• Parties: , 452 N.E.2d 1181 The PEOPLE of the State of New York, Respondent, v. Herman WAY, Appellant.
• Decision Date: 05 July 1983
• Court: New York Court of Appeals Court of Appeals

Page 853

465 N.Y.S.2d 853

59 N.Y.2d 361, 452 N.E.2d 1181

The PEOPLE of the State of New York, Respondent, v. Herman WAY, Appellant.

Court of Appeals of New York.

July 5, 1983.

Salvatore G. Farruggio and Harvey L. Woll, New York City, for appellant.

Robert M. Morgenthau, Dist. Atty., New York City (Emily Berger and Amyjane Rettew, New York City, of counsel), for respondent.

OPINION OF THE COURT

WACHTLER, Judge.

Defendant was convicted, following a jury trial, of burglary in the first degree and robbery in the second degree. He argues on this appeal that the evidence of his guilt, being entirely circumstantial, did not establish his participation in these crimes beyond a reasonable doubt. We agree that the circumstantial evidence offered against defendant was insufficient, inasmuch as the facts adduced are not inconsistent with defendant's innocence, nor does the evidence exclude to a moral certainty every reasonable hypothesis of innocence. The order of the Appellate Division, 90 A.D.2d 718, 455 N.Y.S.2d 781, should therefore be reversed and the indictment dismissed.

On the night of the acts for which defendant stands convicted, Angel and Gladys Burgos lived, along with their 21-year-old son and Angel's brother Carlos, in a first floor apartment on West 121st Street between Amsterdam Avenue and Morningside Drive in Manhattan. At 1:00 a.m., Angel, who had been asleep on the living room floor, was awakened by an armed intruder, who threatened Angel with a handgun and demanded money. The intruder had apparently entered by way of the fire escape, which was directly beneath the living room window facing the street. Angel asked the gunman not to shoot and told him to take whatever money was in the trousers hanging over a chair. According to Angel's testimony, he took $12 out of his trousers' pocket and gave the money and the trousers to the gunman, who started emptying the contents of the pockets onto the floor. Gladys Burgos, who testified that she had been asleep in the front bedroom, was awakened by a commotion during which she heard her husband say, "Don't shoot, don't shoot". She came into the living room as the gunman was going through Angel's trousers. Gladys told the gunman that they had no more money and pleaded with him not to shoot her husband. As she was standing a few feet from the fire escape window, Gladys heard a whistle from outside, followed by a man's voice saying, "Hurry up". The gunman glanced toward the window, then told the Burgoses to go into the bedroom and lie down on the floor. He dumped the contents of a cosmetics bag that was on top of a bureau and then left the apartment by the fire escape window. After the gunman was gone, Angel called the police and went to the window where he saw the gunman being chased by two security guards in the direction of Morningside Drive. The gunman was never apprehended.

Angel's brother, Carlos, had been asleep in the rear bedroom when the intruder entered the apartment. He awoke to hear a conversation taking place in the living room and heard his brother ask someone what he wanted. He then heard his brother say, "Don't fire, don't fire". Carlos awakened his nephew who was also asleep in the rear bedroom and warned him that a robbery was taking place, then removed his pajamas, put on a pair of pants and a shirt and jumped out the bedroom window. Although Carlos gave no definite time frame for these events, he indicated that his sister-in-law was already in the living room at this point. Carlos then proceeded through an alleyway alongside the building and went through a metal gate, coming out onto 121st Street. When Carlos arrived on the street, he saw the defendant, Herman Way, standing on the sidewalk, looking in the direction of the fire escape window, which was 10 to 12 feet above the ground. Carlos testified that he saw defendant look in the direction of Morningside Drive and then in the direction of Amsterdam Avenue. Carlos then ran down 121st Street toward Amsterdam Avenue, where he obtained the assistance of two security guards. As he did this, he saw defendant walking in the same direction. When defendant reached the intersection of 121st Street and Amsterdam, he hailed a taxicab, spoke with the driver momentarily, and then continued walking, now south on Amsterdam Avenue. The police arrived a few moments later, and Carlos pointed them in the direction of defendant, who was still walking. Defenda was arrested between 120th and 119th Streets. He was not in possession of a gun or any proceeds of the crime.

As noted, the gunman was never apprehended. Defendant was tried alone, on a theory of accomplice liability, for burglary in the first degree and robbery in the second degree. His conviction was affirmed by the Appellate Division, over the dissent of two Justices. We agree with the dissenting Justices that the proof was insufficient to support defendant's conviction.

When a defendant's conviction is based, as here, entirely upon circumstantial evidence of his guilt, it is subject to strict judicial scrutiny, not because of any inherent weakness in this form of evidence, but to ensure that the jury has not relied upon equivocal evidence to draw unwarranted inferences or to make unsupported assumptions (People v. Kennedy, 47 N.Y.2d 196, 201, 417 N.Y.S.2d 452, 391 N.E.2d 288; People v. Benzinger, 36 N.Y.2d 29, 32, 364 N.Y.S.2d 855, 324 N.E.2d 334). The well-settled standard of proof in such cases is that the facts from which the inference of defendant's guilt is drawn must be "inconsistent with his innocence and must exclude to a moral certainty every other reasonable hypothesis" (People v. Bearden, 290 N.Y. 478, 480, 49 N.E.2d 785; see People v. Cleague, 22 N.Y.2d 363, 366, 292 N.Y.S.2d 861, 239 N.E.2d 617).

Viewing the facts in a light most favorable to the prosecution and giving it the benefit of every reasonable inference to be drawn therefrom (People v. Montanez, 41 N.Y.2d 53, 57, 390 N.Y.S.2d 861, 359 N.E.2d 371; People v. Kennedy, su...