PEOPLE v. LORA (2021)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by reversing those parts convicting defendant of criminal use of a firearm in the first degree, criminal possession of a weapon in the third degree, and criminal possession of a weapon in the fourth degree and dismissing counts 28, 30, and 32 of the indictment against her and as modified the judgment is affirmed.

Memorandum: Defendant appeals from a judgment convicting her upon a jury verdict of two counts of kidnapping in the second degree (Penal Law § 135.20) and one count each of criminal use of a firearm in the first degree (§ 265.09 [1] [a]), criminal possession of a weapon in the third degree (§ 265.02 [3]), and criminal possession of a weapon in the fourth degree (§ 265.01 [2]). Contrary to defendant's contention, the evidence is legally sufficient to support her conviction of kidnapping in the second degree as an accomplice. 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 conclude that there is a valid line of reasoning and permissible inferences to support the conclusion that defendant had “a shared intent, or ‘community of purpose’ with the principal[s]” (People v. Carpenter, 138 A.D.3d 1130, 1131, 30 N.Y.S.3d 299 [2d Dept. 2016], lv denied 28 N.Y.3d 928, 40 N.Y.S.3d 356, 63 N.E.3d 76 [2016], quoting People v. Cabey, 85 N.Y.2d 417, 421, 626 N.Y.S.2d 20, 649 N.E.2d 1164 [1995]). Based on the evidence adduced at trial, it is reasonable to infer that defendant was aware that the victims were being held at a house in which she was present and that she intentionally aided the principals by providing them and the victims with food (see generally § 20.00). A defendant's intent “ ‘may be inferred from [his or her] conduct as well as the surrounding circumstances’ ” (People v. Metales, 171 A.D.3d 1562, 1563, 99 N.Y.S.3d 559 [4th Dept. 2019], lv denied 33 N.Y.3d 1107, 106 N.Y.S.3d 677, 130 N.E.3d 1287 [2019], quoting People v. Steinberg, 79 N.Y.2d 673, 682, 584 N.Y.S.2d 770, 595 N.E.2d 845 [1992]) and, in this case, the evidence established that defendant sent text messages to a codefendant, Inalia Rolldan (see People v. Rolldan, 175 A.D.3d 1811, 109 N.Y.S.3d 534 [4th Dept. 2019], lv denied 34 N.Y.3d 1081, 116 N.Y.S.3d 142, 139 N.E.3d 800 [2019]), close in time to defendant's arrival at the house, warning Rolldan to not use real names and suggesting that something nefarious was taking place. It is also a reasonable inference that, later in the evening, defendant left the house to procure more food. In addition, viewing the evidence in light of the elements of kidnapping in the second degree as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987]).

We agree with defendant, however, that the evidence is legally insufficient to support her conviction of the counts of criminal use of a firearm in the first degree, criminal possession of a weapon in the third degree, and criminal possession of a weapon in the fourth degree, and we therefore modify the judgment accordingly. Those counts were based on defendant's constructive possession of a rifle that was found in the house after the police entered. The People failed to establish that defendant “exercised dominion or control over [the rifle] by a sufficient level of control over the area in which [it was] found” to establish that she had constructive possession of it (People v. Everson, 169 A.D.3d 1441, 1442, 92 N.Y.S.3d 813 [4th Dept. 2019], lv denied 33 N.Y.3d 1068, 105 N.Y.S.3d 45, 129 N.E.3d 365 [2019] [internal quotation marks omitted]). Rather, as was the case with codefendant Rolldan, the People established nothing more than “defendant's mere presence in the house where the weapon [was] found” (Rolldan, 175 A.D.3d at 1813, 109 N.Y.S.3d 534).