PEOPLE v. FARRELL (2009)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.), rendered September 6, 2006, convicting him of attempted robbery in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law and the facts, and as a matter of discretion in the interest of justice, the indictment is dismissed, and the matter is remitted to the Supreme Court, Kings County, for the purpose of entering an order in its discretion pursuant to CPL 160.50.

 The defendant did not preserve for appellate review his contention that the People failed to present legally sufficient evidence that he shared the intent of his alleged accomplices to commit robbery in the second degree (see CPL 470.05[2];  People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946;  People v. Finger, 95 N.Y.2d 894, 716 N.Y.S.2d 34, 739 N.E.2d 290;  People v. Gray, 86 N.Y.2d 10, 19-21, 629 N.Y.S.2d 173, 652 N.E.2d 919).   Nevertheless, reviewing that contention in the exercise of our interest of justice jurisdiction (see CPL 470.15[3][c] ), and viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that the evidence failed to support the defendant's conviction of attempted robbery in the second degree beyond a reasonable doubt.   To sustain a conviction based upon accessorial liability, “the evidence, when viewed in a light most favorable to the prosecution, must prove beyond a reasonable doubt that the accused acted with the mental culpability necessary to commit the crime charged and that, in furtherance thereof he solicited, requested, commanded, importuned or intentionally aided the principal to commit such crime” (Matter of John G., 118 A.D.2d 646, 499 N.Y.S.2d 800;  see Penal Law § 20.00;  Matter of Bianca W., 267 A.D.2d 463, 464, 700 N.Y.S.2d 497;  Matter of Peter J., 184 A.D.2d 511, 512, 584 N.Y.S.2d 195).   In this case, there was legally insufficient proof from which the jury could have determined beyond a reasonable doubt that the defendant shared the intent to commit robbery, or that he solicited, requested, commanded, importuned, or intentionally aided the principals in committing the offense of attempted robbery in the second degree (see Matter of Tyrone P., 42 A.D.3d 170, 175-176, 837 N.Y.S.2d 49;  Matter of Derrick McM., 23 A.D.3d 474, 475, 808 N.Y.S.2d 106;  Matter of Lamar McL., 19 A.D.3d 234, 234-235, 797 N.Y.S.2d 462;  Matter of Bianca W., 267 A.D.2d 463, 464, 700 N.Y.S.2d 497;  Matter of Peter J., 184 A.D.2d 511, 512, 584 N.Y.S.2d 195).   Furthermore, even if the evidence presented at trial had been legally sufficient to establish accessorial liability for attempted robbery in the second degree, we would nevertheless agree with the defendant, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5];  People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), that the verdict of guilt in this case was against the weight of the evidence (cf. People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

In view of the foregoing, we do not reach the defendant's remaining contentions.