This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
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No. 87
The People &c.,
            Respondent,
        v.
Hakim B. Scott,
            Appellant.




          Steven R. Bernhard, for appellant.
          Seth M. Lieberman, for respondent.




MEMORANDUM:
          The order of the Appellate Division should be affirmed.
          In the early morning hours of December 7, 2008,
following a night of heavy drinking, José Sucuzhaney and his
brother Romel Sucuzhaney were walking home in their Brooklyn
neighborhood while supportively holding one another.   The

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brothers crossed in front of an SUV which was stopped at a red
light.   In the SUV were Keith Phoenix in the driver's seat,
Demetrius Nathaniel in the passenger seat, and defendant Hakim
Scott in the back seat.    As the brothers passed in front of the
SUV, Phoenix yelled homophobic slurs from the car window.      In
response, one of the brothers either lifted his foot to kick the
SUV or actually kicked it.    Defendant exited the vehicle, raised
a glass beer bottle and smashed it over José's head, causing José
to fall to the ground.    Defendant thereafter chased Romel down
the block, carrying the remains of the broken bottle.    Phoenix,
at some point, exited the SUV, removed an aluminum baseball bat
from the car and proceeded to beat José with the bat.    Defendant,
upon returning to the scene, fled in the SUV along with Phoenix
and Nathaniel.   José was left unconscious and died from his
injuries the next day.
           At trial, the People asserted two alternative theories
of liability (1) that defendant was acting in concert with
Phoenix and (2) that defendant alone caused José's death.
Following trial, defendant was convicted of manslaughter in the
first degree, for the death of José, and attempted assault in the
first degree, for his actions toward Romel.    Defendant was
sentenced to consecutive prison terms of 25 years on the
manslaughter conviction and 12 years for attempted assault.      The
Appellate Division reduced the term of imprisonment for the
attempted assault charge from 12 years to four years, and


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otherwise affirmed the convictions, holding that the evidence was
legally sufficient to sustain the convictions (see People v
Scott, 106 AD3d 1030 [2d Dept 2013]).   Defendant argues that his
conviction for first degree manslaughter should be overturned
because the record lacks legally sufficient evidence to support
the conclusion that he was acting in concert with Phoenix to
cause the death of José.
          Penal Law § 20.00 provides that when a principal
commits a crime, the principal's accomplice may be held liable
where the accomplice "acting with the mental culpability required
for the commission [of the crime] . . . solicits, requests,
commands, importunes, or intentionally aids [the principal] to
engage [in the commission of the crime]."   In People v LaBelle
(18 NY2d 405 [1966]), we held that to be liable under an acting
in concert theory, the accomplice and principal must share a
"community of purpose" (id. at 412).
          This was a close case.   The evidence presented at trial
resulted in conflicting testimony about when exactly Phoenix
exited the SUV.   Nathaniel testified that defendant got out of
the car first, then, once defendant ran away chasing Romel,
Phoenix exited the vehicle.   Romel, however, testified that
Phoenix exited at the same time as defendant and, that after
defendant hit José with the bottle, Romel could see Phoenix
coming toward José with the bat.   Thus, under Romel's version of
events, defendant and Phoenix were out of the car at the same


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time, both acting in a manner intending to cause harm to José.
Additionally, another eyewitness testified that he observed
Phoenix swing the bat at one of the brothers while defendant was
present.   Viewing the evidence, as we must, in the light most
favorable to the People (see People v Delamota, 18 NY3d 107, 113
[2011]; People v Conway, 6 NY3d 869, 872 [2006]), a reasonable
jury could infer that a community of purpose existed between
defendant and Phoenix.   Therefore, legally sufficient evidence
exists to support the conclusion that defendant and Phoenix were
acting in concert and caused the death of José.
           Finally, we reject defendant's argument that the trial
court committed a mode of proceedings error when it gave the jury
a supplemental instruction in defendant's absence, regarding the
dates alleged in the indictment.
           During jury instructions, as the court was giving the
jury the relevant dates for the charges against defendant as
stated in the indictment, December 7th and December 8th, the
prosecutor interrupted the judge, attempting to correct her by
stating that the relevant dates were December 6th and December
7th.   The judge then charged the jury using the dates given by
the prosecutor.   The following day, the court -- in the absence
of the jury, defendant, and all counsel -- stated, on the record
to the court reporter, that she had charged the jury on the wrong
dates of the alleged crimes, and that the correct dates were
December 7th and 8th.    The judge stated that she had spoken with


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the parties who agreed that the jury could be informed of this
mistake outside of their presence.        Thereafter, in the absence of
the attorneys and defendant, the judge informed the jury that she
had given them the wrong dates and told them the correct dates of
the alleged crimes, noting that both parties agreed that she
could make the correction in their absence.        Later in the day,
when defendant and his counsel were present, the court referenced
its earlier supplemental instruction and asked defense counsel if
the supplemental instruction was satisfactory, to which defense
counsel responded that he had no objection.
            Although defendant has a fundamental right to be
present during "all material stages of a trial" (People v
Mehmedi, 69 NY2d 759, 760 [1987]), the court's supplemental
instruction to the jury -- simply clarifying the dates of the
crimes in the jury charge, which were the same dates set forth in
the indictment -- did not require defendant's presence.        Because
the court's instruction was a technical conformance with the
indictment that did not require defendant's presence, no mode of
proceedings error occurred.
*   *   *     *   *   *   *   *    *      *   *   *   *   *   *   *    *
Order affirmed, in a memorandum. Chief Judge Lippman and Judges
Read, Pigott, Rivera, Abdus-Salaam, Stein and Fahey concur.

Decided June 11, 2015




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