PEOPLE v. REYES (2016)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Tomei, J.), rendered November 26, 2012, convicting him of conspiracy in the second degree, theft of services, and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is modified, on the law, by vacating the conviction of conspiracy in the second degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.

The defendant was convicted of, among other crimes, conspiracy in the second degree. To convict him of that crime in this case, the jury had to find that the People proved beyond a reasonable doubt, inter alia, that the defendant agreed with one or more other people to engage in or cause the performance of conduct constituting arson in the first degree, namely, an arson that took place on March 1, 2010 (see Penal Law § 105.15). Viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620), we find that it was legally insufficient to establish the defendant's guilt of conspiracy in the second degree. Although the People's evidence showed, inter alia, that the defendant was present at gang meetings where the plan to commit the arson was discussed and that he knew the details of that plan, the evidence was legally insufficient to prove that the defendant entered into a conspiratorial agreement. Accordingly, we must vacate the conviction of conspiracy in the second degree and the sentence imposed thereon, and dismiss that count of the indictment.

We need not reach the defendant's remaining contentions in light of our determination.