Opinion
454 KA 19–00164
04-24-2020
The PEOPLE of the State of New York, Respondent, v. Christopher M. SWEM, Defendant–Appellant. (Appeal No. 1.)
CAITLIN M. CONNELLY, BUFFALO, FOR DEFENDANT–APPELLANT. KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN (PATRICIA L. DZUIBA OF COUNSEL), FOR RESPONDENT.
CAITLIN M. CONNELLY, BUFFALO, FOR DEFENDANT–APPELLANT.
KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN (PATRICIA L. DZUIBA OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., LINDLEY, NEMOYER, TROUTMAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law and a new trial is granted on counts one through six of the indictment.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, murder in the second degree ( Penal Law § 125.25[1] ) and assault in the second degree (§ 120.05[1] ). In appeal No. 2, defendant appeals from a resentence on one count. We dismiss the appeal from the resentence in appeal No. 2 inasmuch as defendant raises no contentions with respect thereto (see People v. Griffin, 151 A.D.3d 1824, 1825, 57 N.Y.S.3d 315 [4th Dept. 2017], lv denied 30 N.Y.3d 949, 67 N.Y.S.3d 133, 89 N.E.3d 523 [2017] ).
Contrary to defendant's contentions in appeal No. 1, we conclude that, 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] ), the evidence is legally sufficient to support the conviction (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ) and, viewing the evidence in light of the elements of the crimes 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] ), the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
We nevertheless agree with defendant and conclude that County Court erred in denying defendant's request for a circumstantial evidence instruction. The victim was stabbed five times at a crowded house party where there were multiple ongoing fights, and the evidence established that the victim was involved in physical altercations with at least two other partygoers. One of the wounds was almost five inches deep, meaning that the blade of the knife must have been at least five inches long. None of the witnesses who observed defendant fighting with the victim observed anything in defendant's hand during the altercation, and no blood was discovered in the room in which defendant and the victim engaged in their altercation. All of the evidence at trial required the jury to infer that defendant was the perpetrator who had the knife and that he used that knife to stab the victim. We thus conclude that a circumstantial evidence instruction was warranted (see People v. Sanchez, 61 N.Y.2d 1022, 1023, 475 N.Y.S.2d 376, 463 N.E.2d 1228 [1984] ; People v. Jones, 105 A.D.3d 1059, 1060, 963 N.Y.S.2d 399 [2d Dept. 2013], lv denied 21 N.Y.3d 1016, 971 N.Y.S.2d 499, 994 N.E.2d 395 [2013] ; People v. Lynch, 309 A.D.2d 878, 878, 766 N.Y.S.2d 60 [2d Dept. 2003], lv denied 2 N.Y.3d 742, 778 N.Y.S.2d 468, 810 N.E.2d 921 [2004] ; cf. People v. Lewis, 300 A.D.2d 827, 828–829, 752 N.Y.S.2d 172 [3d Dept. 2002], lv denied 99 N.Y.2d 630, 760 N.Y.S.2d 111, 790 N.E.2d 285 [2003] ; People v. Lawrence, 186 A.D.2d 1016, 1016–1017, 588 N.Y.S.2d 471 [4th Dept. 1992], lv denied 81 N.Y.2d 790, 594 N.Y.S.2d 737, 610 N.E.2d 410 [1993] ). Contrary to the People's contention, this is not "the exceptional case where the failure to give the circumstantial evidence charge was harmless error" ( People v. Brian, 84 N.Y.2d 887, 889, 620 N.Y.S.2d 789, 644 N.E.2d 1345 [1994] ; see People v. James, 147 A.D.3d 1211, 1214, 48 N.Y.S.3d 524 [3d Dept. 2017], lv denied 29 N.Y.3d 1128, 64 N.Y.S.3d 678, 86 N.E.3d 570 [2017] ; cf. Jones, 105 A.D.3d at 1060, 963 N.Y.S.2d 399 ). We thus conclude that the judgment must be reversed and a new trial must be granted on counts one through six of the indictment. In light of our determination, we do not address defendant's remaining contentions.