        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

296
KA 14-00246
PRESENT: WHALEN, P.J., SMITH, CENTRA, CURRAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

HERBERT FARLEY, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (WILLIAM CLAUSS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County (Alex
R. Renzi, J.), rendered January 22, 2014. The judgment convicted
defendant, upon a jury verdict, of assault in the first degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the facts, the indictment is dismissed and the
matter is remitted to Supreme Court, Monroe County, for proceedings
pursuant to CPL 470.45.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of assault in the first degree as an accessory
(Penal Law § 120.10 [1]; see § 20.00) in connection with an incident
wherein the victim was stabbed by defendant’s son, who intervened
during a fistfight between defendant and the victim. Viewing the
evidence in light of the elements of the crime as charged to the jury
(see People v Danielson, 9 NY3d 342, 349), i.e., that, acting alone or
in concert with another, defendant caused serious physical injury to
the victim by means of a dangerous instrument and that he did so with
the intent to cause serious physical injury to the victim, we
conclude, based upon our independent review of the evidence, that the
“conviction [is] not in accord with the weight of the evidence”
(People v Delamota, 18 NY3d 107, 117; see generally Danielson, 9 NY3d
at 349; People v Bleakley, 69 NY2d 490, 495). We therefore reverse
the judgment and dismiss the indictment.

     The evidence established that, in the early evening on the day of
the incident, defendant and the victim engaged in a verbal altercation
while defendant was walking his dog near a grassy area where the
victim, who was homeless, was staying. Several hours later,
defendant, his dog, and his adult son returned to the area. The
victim and defendant each testified that they had been drinking
alcoholic beverages throughout the day and were intoxicated. The
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victim testified that he heard someone on the other side of a fence
say words to the effect of, “wait here,” and then the victim saw
defendant and his dog proceed through a hole in the fence to the area
where the victim was located. After the men again engaged in a verbal
altercation, defendant struck the victim with his fist, and the victim
knocked defendant to the ground. Defendant told his dog to “Sick
‘em,” but the dog only wagged his tail. The victim testified that
defendant attempted to strike him two or three more times, and that he
knocked defendant to the ground each time.

     The victim further testified that he was approached by
defendant’s son who began to fight with him, while defendant was
somewhere behind him, and stabbed him eight times, resulting in life-
threatening injuries. The victim’s testimony is consistent with
defendant’s testimony that he had proceeded down a hill to retrieve
his dog when his son began fighting with the victim. Defendant also
testified that his son carried a pocket knife and that, on one
occasion, his son carried a knife while chasing a person who had
seriously injured defendant during a bar fight.

     Two other witnesses testified that they were sitting on their
porch in the vicinity of the incident and heard loud arguing between
at least three men, and one of them testified that she heard words to
the effect of, “we’re going to make you pay for this” and “we’re going
to hit you or stick you.” Another witness testified that he was on
the street in front of a bar when he saw a man run toward him, enter a
parked car, and drive away at a high rate of speed. That car was
later found crashed and abandoned, and DNA evidence established that
it had been driven by defendant’s son. Shortly after that witness saw
the man leave in the vehicle, a second man, with a dog, approached the
witness and said words to the effect of, “if a homeless guy comes
looking for me, tell him I went into the bar.”

     Defendant lived in an apartment above the bar, and he called 911
from his apartment and reported that he had been attacked. The police
officer who responded to defendant’s 911 call testified that defendant
said that he had an altercation with a homeless man who was angry
because defendant’s dog had urinated on the fence, and that the
homeless man had knocked him to the ground four or five times. The
police officer testified that defendant was bleeding from injuries to
his head and elbow, and that there was blood on his shirt. Blood on
the hem of the shirt was later determined to be the victim’s blood.

     Although “all of the elements [of the crime] and necessary
findings are supported by some credible evidence,” we conclude that an
acquittal would not have been unreasonable (Bleakley, 69 NY2d at 495;
see Danielson, 9 NY3d at 348). We therefore must “independently
assess all the proof; substitute [our] own credibility determinations
for those made by the jury [if necessary]; determine whether the
verdict was factually correct; and acquit . . . defendant if [we] are
not convinced that the jury was justified in finding that guilt was
proven beyond a reasonable doubt” (Delamota, 18 NY3d at 116-117; see
Bleakley, 69 NY2d at 495). Here, defendant was charged as an
accessory, and thus the People had to “prove beyond a reasonable doubt
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that [defendant] acted with the mental culpability necessary to commit
the crime charged and that, in furtherance thereof, he solicited,
requested, commanded, importuned, or intentionally aided the principal
to commit such crime” (People v Chardon, 83 AD3d 954, 956-957, lv
denied 18 NY3d 857; see Penal Law § 20.00). We conclude that the
People failed to prove beyond a reasonable doubt that defendant acted
with the requisite mental culpability to commit assault in the first
degree by causing serious physical injury to the victim by the use of
a dangerous instrument, or that he solicited, requested, commanded,
importuned or intentionally aided his son in committing the offense
(see Chardon, 83 AD3d at 957).

     In light of our determination, we need not address defendant’s
remaining contentions.




Entered:   May 5, 2017                          Frances E. Cafarell
                                                Clerk of the Court
