PEOPLE v. ALLEN (2019)

We previously held that the verdict was based on legally sufficient evidence, and was not against the weight of the evidence (152 A.D.3d 401, 59 N.Y.S.3d 14 [1st Dept. 2017] ).  We found that the evidence supported the conclusion that defendant intentionally aided the commission of the homicide and shared a community of purpose with the gunman, and that defendant intentionally participated by acting as a driver and by pointing out the victim.  We reversed the judgment and remanded for a new trial, however, upon a finding that the presence of an unconstitutionally infirm murder charge had influenced the verdict.

The Court of Appeals, on appeal from the prior order, held that this Court erred in concluding that the improper presence of the murder count “loomed over the trial, and in some way influenced the verdict” (32 N.Y.3d at 615, 94 N.Y.S.3d 235, 118 N.E.3d 897, 2018 N.Y. Slip Op., 2018 WL 6533307, *2;  152 A.D.3d at 403, 59 N.Y.S.3d 14;  see People v. Mayo, 48 N.Y.2d 245, 422 N.Y.S.2d 361, 397 N.E.2d 1166 [1979] ).  The Court held that the charges against defendant contained in the first indictment were valid and not obtained in violation of CPL 190.75(3), and thus, a spillover analysis rather than Mayo applied.  The Court accordingly remitted the matter to this Court for a determination of the facts and issues raised but not determined on the prior appeal.

We find that defendant received the effective assistance of counsel under the state and federal standards (see People v. Benevento, 91 N.Y.2d 708, 711–712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];  People v. Hobot, 84 N.Y.2d 1021, 1022, 622 N.Y.S.2d 675, 646 N.E.2d 1102 [1995];  Strickland v. Washington, 466 U.S. 668, 689–692, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).

Counsel was not ineffective for failing to request an instruction that if the jury convicted codefendant Alexander of intentional murder, it should acquit defendant of manslaughter.  The court properly instructed the jury on the applicable principles of acting in concert liability, including that the jury “must find beyond a reasonable doubt that the particular defendant ․ intentionally aided that person or persons to engage in that conduct [and][t]hat the particular defendant did so with the state of mind required for the commission of that offense.”  “The fact that [a] defendant and codefendant [are] convicted of different degrees of homicide does not undermine the inference of accessorial liability” (People v. Dedaj, 303 A.D.2d 285, 756 N.Y.S.2d 560 [1st Dept.], lv denied 100 N.Y.2d 580, 764 N.Y.S.2d 390, 796 N.E.2d 482 [2003];  People v. Valentin, 289 A.D.2d 172, 172–173, 735 N.Y.S.2d 58 [1st Dept. 2001], lv denied 97 N.Y.2d 734, 740 N.Y.S.2d 707, 767 N.E.2d 164 [2002] ).  For example, the jury may have concluded that Alexander intended to kill the victim, but defendant intended only to seriously physically injure him based on what he knew prior to the shooting, and acted in concert with the cooperating witness.

For the same reason, counsel was not ineffective for failing to object to the verdict as repugnant (see People v. Tucker, 55 N.Y.2d 1, 8, 447 N.Y.S.2d 132, 431 N.E.2d 617 [1981] ) based on the jury's acquittal of defendant of acting in concert with intent to kill the victim, and conviction of acting in concert with intent to cause him serious physical injury, while the jury convicted Alexander, one of the shooters, of intentional murder.

The record shows that counsel zealously represented defendant throughout the trial and sentencing.