PEOPLE v. DAVIS (2000)

 County Court erred in dismissing the indictment on the ground that there was legally insufficient evidence that defendant intentionally aided his codefendants in the commission of burglary in the first degree (Penal Law § 140.30[2] ) and assault in the second degree (Penal Law § 120.05[6] ).   It is well settled that “[m]ere presence at the scene of a crime cannot render a person liable as an accessory for the underlying criminal conduct” (People v. Arias, 270 A.D.2d 354, 704 N.Y.S.2d 874, lv. denied 95 N.Y.2d 850, 852, 714 N.Y.S.2d 1, 3, 736 N.E.2d 862, 864;  see also, People v. Cabey, 85 N.Y.2d 417, 421, 626 N.Y.S.2d 20, 649 N.E.2d 1164).   Here, however, defendant's immediate presence at the doorway of the victims' house, approximately one or two feet from a codefendant who was attacking the victims as the victims stood in the doorway, coupled with defendant's later statement to police concerning why defendant and codefendants were trying to break into the house, is more than “mere presence” and constitutes legally sufficient evidence to sustain the charges (see, e.g., People v. McDonald, 257 A.D.2d 695, 696-697, 684 N.Y.S.2d 646, lv. denied 93 N.Y.2d 876, 689 N.Y.S.2d 438, 711 N.E.2d 652;  Matter of Tarik R., 232 A.D.2d 233, 647 N.Y.S.2d 783, lv. denied 89 N.Y.2d 808, 655 N.Y.S.2d 888, 678 N.E.2d 501;  People v. Davis, 186 A.D.2d 437, 589 N.Y.S.2d 20, lv. denied 81 N.Y.2d 787, 594 N.Y.S.2d 734, 610 N.E.2d 407;  see also, People v. Taylor, 203 A.D.2d 77, 77-78, 610 N.Y.S.2d 30, lv. denied 83 N.Y.2d 915, 614 N.Y.S.2d 397, 637 N.E.2d 288).   We therefore reverse the order insofar as appealed from, deny defendant's motion, reinstate the indictment and remit the matter to Erie County Court for further proceedings on the indictment.

Order insofar as appealed from unanimously reversed on the law, motion denied, indictment reinstated and matter remitted to Erie County Court for further proceedings on the indictment.

MEMORANDUM: