PEOPLE v. MARTINEZ (2006)

Judgment, Supreme Court, Bronx County (Joseph Fisch, J.), rendered December 17, 2003, convicting defendant, after a jury trial, of manslaughter in the first degree, and sentencing him to a term of 10 years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   Not only was there overwhelming evidence that defendant acted in concert with the codefendant to cause the victim's death, but even when viewed in the light most favorable to the defense, there was no reasonable view of the evidence that defendant acted independently and only committed a third-degree assault.   Accordingly, the court properly declined to submit that charge.

Defendant, who had a motive to seek revenge, insisted that the codefendant, who was defendant's cousin, assist him in pursuing the victim.   Defendant and the codefendant chased the victim, and after defendant knocked him down, the two men simultaneously struck the victim as he lay incapacitated on the ground, after which they fled together.   Although it appears that only the codefendant, who wielded a weapon, inflicted fatal injuries, this evidence established a community of purpose (see e.g. Matter of Juan J., 81 N.Y.2d 739, 593 N.Y.S.2d 768, 609 N.E.2d 121 [1992];  People v. Allah, 71 N.Y.2d 830, 527 N.Y.S.2d 731, 522 N.E.2d 1029 [1988] ), and defendant's course of conduct before, during and after the attack made no sense unless he and the codefendant were acting in concert.   Furthermore, the jury had no basis upon which to selectively credit parts of the eyewitnesses' testimony and discredit other parts (see People v. Negron, 91 N.Y.2d 788, 792, 676 N.Y.S.2d 520, 699 N.E.2d 32 [1998] ).   Finally, there is no merit to defendant's argument that the jury's conviction of the codefendant of depraved indifference murder while acquitting defendant of that charge implies a rejection of accessorial liability (see People v. Rayam, 94 N.Y.2d 557, 708 N.Y.S.2d 37, 729 N.E.2d 694 [2000];  People v. Valentin, 289 A.D.2d 172, 173, 735 N.Y.S.2d 58 [2001], lv. denied 97 N.Y.2d 734, 740 N.Y.S.2d 707, 767 N.E.2d 164 [2002] ).