PEOPLE v. PIETROCARLO (2021)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting her, after a nonjury trial, of assault in the second degree as an accessory (Penal Law §§ 20.00, 120.05 [12]). We affirm.

Viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983]), we reject defendant's contention that the evidence is legally insufficient to support her conviction as an accessory. As relevant here, a person is guilty of assault in the second degree when, “[w]ith intent to cause physical injury to a person who is sixty-five years of age or older, he or she causes such injury to such person, and the actor is more than ten years younger than” the victim (Penal Law § 120.05 [12]). To establish defendant's guilt as an accessory under Penal Law § 20.00, the People were required to prove that defendant had “a shared intent, or community of purpose with the principal [actor] ․, and that [s]he intentionally aided the principal in bringing forth [the] result” (People v. Nelson, 178 A.D.3d 1395, 1396, 116 N.Y.S.3d 826 [4th Dept. 2019], lv denied 35 N.Y.3d 972, 125 N.Y.S.3d 8, 148 N.E.3d 472 [2020] [internal quotation marks omitted]; see People v. Allah, 71 N.Y.2d 830, 832, 527 N.Y.S.2d 731, 522 N.E.2d 1029 [1988]; People v. McDonald, 172 A.D.3d 1900, 1901, 100 N.Y.S.3d 462 [4th Dept. 2019]).

Contrary to defendant's argument, this is not a case where she was convicted based solely on her presence at the scene of the crime (cf. People v. Tucker, 72 N.Y.2d 849, 850, 532 N.Y.S.2d 91, 527 N.E.2d 1227 [1988]; see generally Matter of Tatiana N., 73 A.D.3d 186, 190-191, 899 N.Y.S.2d 21 [1st Dept. 2010]). In our view, the victim's testimony at trial was legally sufficient to establish that defendant acted in concert with three other members of her family (codefendants) to cause physical injury to the victim. It is immaterial that the victim could not conclusively state whether defendant actually kicked him during the attack or whether she caused him injury (see People v. Hill, 251 A.D.2d 129, 129, 675 N.Y.S.2d 338 [1st Dept. 1998], lv denied 92 N.Y.2d 899, 680 N.Y.S.2d 63, 702 N.E.2d 848 [1998]) because the victim's testimony that he was surrounded by defendant and the codefendants and kicked on all sides following a confrontation about money allows for the reasonable inference that they collectively delivered the blows that caused the victim's injuries and that they shared the common purpose of injuring him (see People v. Staples, 19 A.D.3d 1096, 1097, 796 N.Y.S.2d 209 [4th Dept. 2005], lv denied 5 N.Y.3d 810, 803 N.Y.S.2d 39, 836 N.E.2d 1162 [2005]; People v. Rosario, 199 A.D.2d 92, 93, 605 N.Y.S.2d 53 [1st Dept. 1993], lv denied 82 N.Y.2d 930, 610 N.Y.S.2d 182, 632 N.E.2d 492 [1994]).