Opinion
October 9, 1973
Appeal by the People from an order of the Supreme Court, Kings County, entered August 8, 1972, which inter alia granted in part a motion by defendant Theodore Gist to dismiss the indictment as to him, i.e., to the extent of dismissing the first two counts, both of which are for murder, as to him. Order reversed, on the law, said motion denied and the first two counts of the indictment as to defendant Theodore Gist are reinstated. The first two counts of the indictment charge defendants Theodore and Ralph Gist, brothers, with murder of Carlos Roman by shooting him with a rifle (Penal Law, § 125.25, subds. 1, 2). A witness testified before the Grand Jury that the brothers Gist were standing on a stoop firing into a crowd and that Ralph was armed with a rifle and Theodore with a pistol. The murder counts were dismissed as to Theodore only, apparently upon the theory that these counts alleged that the victim had died of rifle wounds and that Theodore had been armed with a pistol. In our opinion, the evidence before the Grand Jury was sufficient to sustain the two counts of murder upon the theory that Theodore was an accessory to the murder (Penal Law, § 20.00; see and cf. People v. Beaudet, 31 A.D.2d 705, 706; People v. Washington, 18 N.Y.2d 366; People v. Kupperschmidt, 237 N.Y. 463, 465; People v. Blank, 283 N.Y. 526). Martuscello, Acting P.J., Gulotta, Christ, Brennan and Benjamin, JJ., concur.