Opinion
KA 01-01275.
Decided March 19, 2004.
Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang, J.), rendered May 23, 2000. The judgment convicted defendant, upon a jury verdict, of criminal facilitation in the second degree.
ROBERT M. GOLDSTEIN, BUFFALO (DANIEL P. GRASSO OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (RAYMOND C. HERMAN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., GREEN, HURLBUTT, GORSKI, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is affirmed.
Memorandum: On appeal from a judgment convicting her after a jury trial of criminal facilitation in the second degree (Penal Law § 115.05), defendant contends that the evidence is legally insufficient to support the conviction. Defendant moved to dismiss the indictment on that ground at the close of the People's case, but failed to renew that motion after presenting her case. Thus, defendant's contention is not preserved for our review ( see People v. Hines, 97 N.Y.2d 56, 61-62, rearg denied 97 N.Y.2d 678). In any event, viewing the evidence in the light most favorable to the People, we conclude that "there is a `valid line of reasoning and permissible inferences [that] could lead a rational person to the conclusion reached by the fact finder'" and thus the evidence is legally sufficient to support defendant's conviction ( People v. DeNormand, 1 A.D.3d 1047, 1048; see generally People v. Bleakley, 69 N.Y.2d 490, 496). We further conclude that Supreme Court fashioned an appropriate sanction for the People's failure to preserve discoverable material ( see People v. West, 203 A.D.2d 947, 948, lv denied 84 N.Y.2d 834; People v. Pfahler, 179 A.D.2d 1062, 1062-1063), and defendant received effective assistance of counsel ( see People v. Baldi, 54 N.Y.2d 137, 146-147).
All concur except Green and Hurlbutt, JJ., who dissent and vote to reverse in accordance with the following memorandum.
We respectfully dissent. In our view, the evidence, even when viewed in the light most favorable to the People ( see People v. Contes, 60 N.Y.2d 620, 621), is not legally sufficient to support defendant's conviction of criminal facilitation in the second degree (Penal Law § 115.05). The evidence establishes that defendant was a passenger in a vehicle driven by her husband, codefendant Alonzo Johnson ( see People v. Johnson, 303 A.D.2d 967, lv denied 100 N.Y.2d 583), when Johnson drove up alongside the victim and another pedestrian on a Buffalo street. After the victim failed to comply with Johnson's demand for money, Johnson directed defendant to lean her seat back. When defendant complied, Johnson grabbed a shotgun, leaned over her, pointed the shotgun out the passenger window and fatally shot the victim. Defendant's compliance with Johnson's direction that defendant lean her seat back, without more, is insufficient to support an inference that defendant "believed it probable that [s]he was rendering aid" to Johnson ( People v. Bell, 286 A.D.2d 772, 772, lv denied 97 N.Y.2d 654; cf. People v. Polk, 84 A.D.2d 943, 944). We would therefore exercise our discretionary power to review defendant's challenge to the legal sufficiency of the evidence, reverse the judgment of conviction, dismiss the indictment and remit the matter to Supreme Court for proceedings pursuant to CPL 470.45.