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

1051
KA 12-02392
PRESENT: SCUDDER, P.J., SMITH, FAHEY, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                                OPINION AND ORDER

TODD R. HEATLEY, DEFENDANT-APPELLANT.


THE ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (NICHOLAS T. TEXIDO
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Sheila A.
DiTullio, J.), rendered November 9, 2010. The judgment convicted
defendant, upon a jury verdict, of murder in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
modified as a matter of discretion in the interest of justice and on
the law by reducing the conviction of murder in the second degree
(Penal Law § 125.25 [1]) to manslaughter in the first degree (§ 125.20
[1]) and vacating the sentence and the matter is remitted to Erie
County Court for sentencing on the conviction of manslaughter in the
first degree.

     Opinion by SCUDDER, P.J.: Defendant appeals from a judgment
convicting him upon a jury verdict of murder in the second degree
(Penal Law § 125.25 [1]) in connection with the stabbing death of the
victim. It is undisputed that the altercation between defendant and
the victim occurred outside the two-family residence where they each
had attended separate parties and, although several other guests also
were outside, there were no witnesses to the altercation.

                                  I

     Contrary to defendant’s contention, County Court’s determination
that a prosecution witness was not an agent of the government when he
spoke to defendant is supported by the record (see People v Young, 100
AD3d 1427, 1427-1428, lv denied 20 NY3d 1105).

     Defendant failed to preserve for our review his contention that a
prosecutor who participated with him in a demonstration of the
altercation during cross-examination thereby provided unsworn
testimony (see CPL 470.05 [2]; see generally People v Hawkins, 11 NY3d
484, 491-493). In any event, we note that the record establishes that
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defendant portrayed the victim during the demonstration and directed
the actions of the prosecutor, who portrayed defendant (cf. People v
Williams, 90 AD2d 193, 196). We conclude that, “[u]nder the
circumstances, . . . no undue prejudice resulted” (People v Barnes, 80
NY2d 867, 868; see People v Jones, 70 AD3d 1253, 1255; cf. Williams,
90 AD2d at 196). We further conclude that defendant’s contention that
he was denied effective assistance of counsel based upon the failure
of defense counsel to object to the demonstration is without merit
inasmuch as defendant failed “ ‘to demonstrate the absence of
strategic or other legitimate explanations’ for defense counsel’s
allegedly deficient conduct” (People v Atkins, 107 AD3d 1465, 1465, lv
denied 21 NY3d 1040).

     Defendant failed to object to the court’s charge to the jury on
the justification defense and thus failed to preserve for our review
his contention that the court improperly lowered the People’s burden
of proof to disprove the defense (see People v Johnson, 103 AD3d 1226,
1226, lv denied 21 NY3d 944). In any event, we conclude that the
court’s charge properly informed the jury that, if it determined that
defendant was justified in using deadly force against the victim, it
must acquit him of all counts (see generally id.). We therefore also
reject defendant’s contention that the failure of defense counsel to
object to the charge deprived him of effective assistance of counsel
(see id.).

                                  II

     We reject defendant’s contention that the verdict is against the
weight of the evidence with respect to the justification defense.
Defendant testified that the victim was holding defendant’s neck under
the victim’s arm while he punched defendant and that defendant felt
dizzy and was afraid that he would pass out and then “be demolished.”
Defendant testified that he therefore removed two “throwing” knives
from a sheath on his belt and stabbed the victim in an effort to have
the victim release him. The People established, however, that the
victim was five inches shorter and only slightly heavier than
defendant and that he was not armed. Thus, we conclude that, although
a different verdict would not have been unreasonable, when viewing the
elements of the justification defense as charged to the jury (see
People v Danielson, 9 NY3d 342, 349; People v Bleakley, 69 NY2d 490,
495), the jury did not fail to give the evidence the weight it should
be accorded (see People v Massey, 61 AD3d 1433, 1433, lv denied 13
NY3d 746; see also People v Heary, 104 AD3d 1208, 1209, lv denied 21
NY3d 943, reconsideration denied 21 NY3d 1016).

                                 III

     Defendant further contends that the verdict is against the weight
of the evidence because the People did not prove beyond a reasonable
doubt that he had the requisite intent to kill the victim. We note
that defendant does not separately contend that the evidence is
legally insufficient to support the conviction (cf. People v Rice, 105
AD3d 1443, 1443-1444; People v Stephenson, 104 AD3d 1277, 1278, lv
denied 21 NY3d 1020; People v Stepney, 93 AD3d 1297, 1298, lv denied
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19 NY3d 968). In any event, defendant failed to renew his motion to
dismiss at the close of proof and thus failed to preserve for our
review a contention that the evidence is legally insufficient to
support the conviction (see People v Hines, 97 NY2d 56, 61, rearg
denied 97 NY2d 678). Nevertheless, it is now well established that,
“in conducting its weight of the evidence review, a court must
consider the elements of the crime, for even if the prosecution’s
witnesses were credible their testimony must prove the elements of the
crime beyond a reasonable doubt” (Danielson, 9 NY3d at 349). Upon our
review of the elements of the crime of murder in the second degree, we
conclude that, viewing the facts in the light most favorable to the
People, “a jury could [not] logically conclude that the People
sustained [their] burden of proof” with respect to the element of
intent to kill (id.).

     It is undisputed that defendant stabbed the victim eight times
with two “throwing” knives and then left the scene and discarded the
knives, which were later recovered by the police. The knives were
described by a police witness as having two- to three-inch blades,
only the tips of which were sharp. Prosecution witnesses testified
that the victim was angry and aggressive because he was asked to leave
the party and that defendant, and others, attempted to diffuse the
situation developing between the victim and his friend, and the host
of the party. The People’s evidence included photographs of defendant
that depict extensive bruising on his back and side. The testimony of
the Medical Examiner and photographs taken during the autopsy of the
victim establish that the victim sustained five stab wounds to the
front of the body: three wounds were located in the area of the
victim’s left underarm, one wound was located in the area of the
victim’s right underarm, and another wound was located to the left of
the midline of the victim’s chest. There also were three wounds
located on the back of the victim’s body: one wound was located in
the upper back above the left arm, another wound was located in the
upper midline area of the back, and the third wound was located in the
lower right area of the back. Each lung had a single laceration. The
Medical Examiner explained that the lacerations to the lungs had the
potential to be life-threatening in the event that fluid entered the
lungs, became infected, and resulted in a systemic infection. Only
one of the eight wounds, however, was immediately life-threatening.
The fatal wound occurred when defendant stabbed the victim in the
midline area of the chest, penetrating the right ventricle of the
heart. The Medical Examiner also testified that the victim’s left arm
was raised when he was stabbed, that there were no defensive wounds
with the exception of a 1½-inch cut to the victim’s right forearm, and
that the short blade of the knife was able to penetrate the heart
because the position of the victim’s body caused the heart to be
compressed closer to the skin.

      Although defendant contends that the verdict is against the
weight of the evidence with respect to the element of intent, he does
not make an actual weight of the evidence argument, i.e., that the
overall weight of the evidence, the conflicting testimony, and the
inferences that may be drawn therefrom render the verdict against the
weight of the evidence (see generally Danielson, 9 NY3d at 348; People
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v Romero, 7 NY3d 633, 643-644; Bleakley, 69 NY2d at 495). Indeed, the
facts themselves are essentially undisputed; the testimony of the
People’s witnesses and the physical evidence is consistent with
defendant’s testimony that he stabbed the victim in an effort to have
the victim release him during an altercation that the victim
initiated. Instead, defendant contends that the verdict is against
the weight of the evidence because the credible testimony of the
People’s witnesses does not “prove the elements of the crime beyond a
reasonable doubt” (Danielson, 9 NY3d at 349).

     We agree with defendant that, despite the number of injuries the
victim sustained, including a single fatal stab wound, the credible
evidence is not sufficient to prove beyond a reasonable doubt that he
intended to kill the victim. Upon our review of the credible evidence
presented by the People (see id.), we conclude that the evidence is
not sufficient to prove the element of intent to kill because the
physical evidence, particularly the location of the stab wounds,
supports the conclusion that defendant, during an altercation that the
victim initiated, stabbed the victim in an effort to have the victim
release him and not with an intent to kill him. Had defendant
expressly contended that the evidence is legally insufficient to
support the conviction, we would conclude that there is no “valid line
of reasoning and permissible inferences which could lead a rational
person to the conclusion reached by the jury on the basis of the
evidence at trial . . . and as a matter of law satisfy the proof and
burden requirements for every element of the crime charged” (Bleakley,
69 NY2d at 495; see Danielson, 9 NY3d at 349).

                                  IV

     For the reasons that follow, we decline to dismiss the indictment
pursuant to CPL 470.20 (5) on the ground that the verdict is against
the weight of the evidence. Instead, we conclude that the conviction
should be reduced pursuant to CPL 470.15 (2) (a) to the lesser
included offense of manslaughter in the first degree (Penal Law §
125.20 [1]), and the matter should be remitted to County Court for
sentencing on the lesser included offense pursuant to CPL 470.20 (4).

     CPL 470.20 (5) provides that the determination by an intermediate
appellate court that a verdict is against the weight of the evidence
requires dismissal of the indictment. We respectfully disagree with
our concurring colleague and our colleagues at the Second Department
that CPL 470.15 (5) provides the authority to reduce a conviction to a
lesser included offense upon a determination that the verdict is
against the weight of the evidence (see e.g. People v Santiago, 97
AD3d 704, 706-707, lv granted 20 NY3d 935; People v Haney, 85 AD3d
816, 818-819, lv denied 17 NY3d 859). Rather, we agree with our
dissenting colleague that CPL 470.15 (5) permits the judgment of a
multi-count indictment to be modified in the event that the evidence
with respect to one or more of those counts is against the weight of
the evidence by dismissing the count or counts. In our view, the
power to reduce a conviction to a lesser included offense is limited
to cases in which it is determined that the evidence “is not legally
sufficient to establish the defendant’s guilt of an offense of which
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                                                         KA 12-02392

he [or she] was convicted but is legally sufficient to establish his
[or her] guilt of a lesser included offense” (CPL 470.15 [2] [a]).

     We recognize, as our concurring colleague explains, that the
legislature changed the remedy for reversal of a judgment on a weight
of the evidence review from granting a new trial to dismissing the
indictment (see L 1970, ch 996, § 470.20 [5]), thereby removing the
distinction between a reversal on the ground of legal insufficiency
and weight of the evidence review. We nevertheless disagree with our
concurring colleague that the legislative action provided authority to
modify a judgment by reducing a conviction to a lesser included
offense if the weight of the evidence supported a lesser included
offense, but not the offense of which defendant was convicted. The
legislature explicitly provided the alternative remedy of reducing a
conviction to a lesser included offense if the evidence was legally
insufficient to support the conviction but was legally sufficient to
support the conviction of a lesser included offense (see CPL 470.15
[2] [a]); however, the statute is silent with respect to that remedy
if the verdict is against the weight of the evidence (see id.). In
our view, if the legislature had intended to provide the same relief
to modify a judgment in the event that the weight of the evidence
failed to support the conviction but supported a lesser included
offense, it would have done so.

     We respectfully disagree with our concurring colleague that
People v Cahill (2 NY3d 14) supports the conclusion that a judgment
may be modified by reducing a conviction to a lesser included offense
if the verdict is against the weight of the evidence. Instead, we
agree with our dissenting colleague that the unique circumstances
involved in Cahill do not apply here. In Cahill, defendant was
convicted of two counts of murder in the first degree (Penal Law §
125.27 [1] [a] [v], [vii]), in connection with the murder of his wife,
based upon two aggravating factors: witness elimination murder and
intentional murder in the course of and in furtherance of a burglary
(Cahill, 2 NY3d at 35). The Court of Appeals explained that the
aggravating factors were established by the legislature “to create a
subclass of defendants who, in contrast to others who commit
intentional murder, it thought deserving of the death penalty. By
this device, the lawmakers saw to it that the death penalty could not
fall randomly on all murder defendants” (id. at 62). The Court
further explained that the aggravating factor “elevates intentional
murder to capital-eligible murder” (id.). In other words, the offense
is intentional murder, but the aggravating factor must be proved in
addition to the intentional murder in order to impose the death
penalty on a particular defendant (see id. at 63). In Cahill, the
Court of Appeals “vacated” the conviction of witness elimination
murder because the proof at trial led the Court to conclude that
defendant’s motive to kill his wife was not related to eliminating her
as a witness in a Family Court matter (id. at 62). The Court also
concluded that the additional and independent crime of burglary was
not proved but, rather, that the People improperly used the same mens
rea, i.e., defendant’s intent to kill, for both the murder and the
burglary requirements of the offense of murder in the first degree
(id. at 64).
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     Indeed, the Court described Penal Law § 125.27 (a) (1) as
requiring a “double crime—murder ‘plus’ ” (id. at 64). The Court
determined that one of the two “crimes,” i.e., the “plus crime,” in
each count of murder in the first degree was not proved and therefore
modified the judgment accordingly (id. at 72). In our view, the
resolution of Cahill was not a reduction to a lesser included offense
because the verdict was against the weight of the evidence; instead,
the resolution was a determination that the capital penalty was not
available because only the discrete intentional murder, and not the
discrete “plus crime,” was proved. In our view, therefore, Cahill
does not support the conclusion that here, the conviction of murder in
the second degree may be reduced to a lesser included offense if the
weight of the evidence supports a lesser included offense.

                                  V

     We conclude, as does our dissenting colleague, that CPL 470.20
(5) requires dismissal of the indictment if it is determined that the
verdict is against the weight of the evidence. Where as here,
however, there is no separate contention that the conviction is not
supported by legally sufficient evidence, but instead the analysis of
the legal sufficiency of the evidence is conducted solely in the
context of a contention that the verdict is against the weight of the
evidence (see Danielson, 9 NY3d at 349), we conclude that dismissal of
the indictment is not the appropriate remedy. We note that, in
Danielson, the Court of Appeals stated that it was called upon “to
determine the scope of weight of the evidence review when a defendant
has failed to preserve a challenge to the legal sufficiency of his
conviction. In particular, we are asked whether weight of the
evidence review requires assessment of the elements of the crime for
which defendant was convicted, or whether such review would simply be
tantamount to back-door sufficiency review” (id. at 346). Indeed, the
Court concluded that “the Appellate Division incorrectly concluded
that it was unnecessary to conduct an element-based review” (id. at
349). We interpret that language to require us to determine, in the
first instance, whether the evidence was legally sufficient to support
the conviction. We therefore conclude that, despite the fact that our
review is in the context of a contention that the verdict is against
the weight of the evidence, our assessment of the elements of the
crime of murder in the second degree under these circumstances is not
a determination on the facts (see CPL 470.15 [5]), i.e., a
consideration of the “credible evidence, conflicting testimony and
inferences that could be drawn from the evidence” (Danielson, 9 NY3d
at 349). Instead, our assessment is a determination on the law that
the evidence is legally insufficient with respect to the element of
intent (see CPL 470.15 [4] [b]).

     We respectfully disagree with our dissenting colleague’s
conclusion that our review is limited by defendant’s “request for only
a weight-based review” and that, based on that request, we must
reverse the judgment as against the weight of the evidence and dismiss
the indictment. Our conclusion that the judgment should be modified
by reducing the conviction to a lesser included offense is supported
by our reasoning that a defendant may not usurp our authority to
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determine the appropriate statutory remedy as set forth in CPL 470.20
by the manner in which he or she challenges the legal sufficiency of
the evidence, i.e., within the context of a weight of the evidence
contention rather than by an express contention that the conviction is
not supported by legally sufficient evidence (see generally Bleakley,
69 NY2d at 495). In other words, we conclude that we are not required
to afford the remedy of dismissal of the indictment pursuant to CPL
470.20 (5) merely because defendant’s contention that the evidence of
the intent to kill was not proved beyond a reasonable doubt is made in
the context of a request for a weight of the evidence review, rather
than in the context of a contention that the conviction is not
supported by legally sufficient evidence, even if that contention is
not preserved for our review.

                                  V

      Thus, based upon our determination that the evidence is not
sufficient to establish beyond a reasonable doubt that defendant
intended to kill the victim, but it is sufficient to establish beyond
a reasonable doubt that he intended to cause serious physical injury
to the victim, which resulted in the victim’s death (see Penal Law §
125.20 [1]), we conclude that the conviction of murder in the second
degree should be reduced to manslaughter in the first degree pursuant
to CPL 470.15 (2) (a). Accordingly, we conclude that the judgment
should be so modified, and the matter should be remitted to County
Court for sentencing on the manslaughter conviction (see CPL 470.20
[4]).

     We have reviewed defendant’s remaining contentions and conclude
that none requires reversal or further modification of the judgment.

     SCONIERS and VALENTINO, JJ., concur; SMITH, J., concurs in the
following Opinion: I respectfully disagree with the majority’s
conclusions “that CPL 470.20 (5) requires dismissal of the indictment
if it is determined that the verdict is against the weight of the
evidence,” and that we should review the legal sufficiency of the
evidence in this case. To the contrary, I conclude that defendant
does not seek review of the legal sufficiency of the evidence on
appeal and, as noted by the majority, did not in any event preserve a
legal sufficiency challenge for our review. In my view, we must,
pursuant to defendant’s request, review the weight of the evidence
with respect to whether the People proved beyond a reasonable doubt
that he had the requisite intent to kill the victim. I further
conclude that the verdict convicting defendant of murder in the second
degree (Penal Law § 125.25 [1] [intentional murder]) is against the
weight of the evidence and that the conviction therefore should be
reduced to manslaughter in the first degree (§ 125.20 [1]). Because
this will yield the same result as that reached by the majority, I
thus concur in the result. Furthermore, I agree with the majority’s
resolution of the remaining issues raised by defendant on appeal, and
join in its determination to reject the remainder of defendant’s
contentions.
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     Turning to the issues upon which we disagree, I note that the
majority concludes that we must review the legal sufficiency of the
evidence as part of our weight of the evidence review. The majority
further concludes that the evidence in this case is legally
insufficient to establish that defendant acted with the requisite
intent to cause the death of the victim despite, as noted, defendant’s
failure to preserve the issue for our review and the absence of a
request by defendant on appeal for a sufficiency review.

     Most importantly, although I agree with the majority that, in
reviewing the weight of the evidence, we “must consider the elements
of the crime, for even if the prosecution’s witnesses were credible
their testimony must prove the elements of the crime beyond a
reasonable doubt” (People v Danielson, 9 NY3d 342, 349), I conclude
that the evidence in this case is legally sufficient to support the
conviction with respect to defendant’s intent to cause the death of
the victim. “The standard for reviewing the legal sufficiency of
evidence in a criminal case is whether ‘after viewing the evidence in
the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a
reasonable doubt’ ” (People v Contes, 60 NY2d 620, 621, quoting
Jackson v Virginia, 443 US 307, 319, reh denied 444 US 890), which, in
turn, requires that we “determine whether there is any valid line of
reasoning and permissible inferences which could lead a rational
person to the conclusion reached by the jury on the basis of the
evidence at trial” (People v Bleakley, 69 NY2d 490, 495).

     After conducting such a review, I respectfully disagree with the
majority’s conclusion that no rational jury could reach the conclusion
that defendant intended to kill the victim. There was evidence
establishing that defendant stabbed the victim in the chest and back,
causing a total of eight wounds, including the fatal wound that
penetrated the victim’s chest cavity and pierced his heart. It is
well settled that, when reviewing the legal sufficiency of the
evidence in a criminal case, we must view the evidence in the light
most favorable to the People (see Contes, 60 NY2d at 621), and
“indulg[e] in all reasonable inferences in the People’s favor” (People
v Ford, 66 NY2d 428, 437; see People v Delamota, 18 NY3d 107, 113).
Viewed in that light, I agree with the People that a rational jury
could have concluded that defendant intended to kill the victim, based
on the number of stab wounds and the fact that the fatal wound left a
four-inch long track in the victim’s chest and pierced his right
ventricle (see People v Massey, 61 AD3d 1433, 1433-1434, lv denied 13
NY3d 746; People v Gardella, 5 AD3d 695, 695-696, lv denied 2 NY3d
799; see also People v Johnson, 20 AD3d 808, 811-812, lv denied 5 NY3d
853; People v Self, 239 AD2d 943, 943, lv denied 90 NY2d 910).

     Notwithstanding the legal sufficiency of the evidence with
respect to defendant’s intent to cause the victim’s death, however, I
further conclude that the verdict is contrary to the weight of the
evidence on that issue. All of the evidence indicates that defendant
stabbed the victim with two knives, both of which had blades that were
two to three inches long. The Medical Examiner who performed the
autopsy testified that the fatal wound could have been caused by such
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a knife if the victim’s chest was compressed at the time that the
wound was inflicted, which could result in a wound that is longer than
the weapon that caused it. In his testimony concerning the stabbing,
defendant described a fight in which the victim was holding defendant
and striking him, and the wounds are consistent with defendant’s
testimony that he kept stabbing the victim until the victim released
his grip on defendant. The expert medical testimony also established
that the victim had only one wound that could be described as a
defensive wound, and more such wounds would be expected if defendant
were not truthfully describing the incident. In addition, the victim
had stab wounds under his arm that were consistent with his being
stabbed while that arm was raised or held away from his body, which
comports with defendant’s version of the events. Although defendant
concedes that the victim was unarmed and thus defendant’s acts were
not justified, his description of the event is consistent with an
intent to injure and inconsistent with an intent to kill.

     In addition, the record contains evidence establishing that the
victim was the aggressor, and there was evidence that defendant
exhibited bruising that could have been caused by the victim holding
and punching defendant, consistent with defendant’s version of the
events. The evidence introduced by the People also established that
the victim had consumed the drug ecstasy and a significant amount of
alcohol during the party that preceded this incident. The evidence
further establishes that the incident began when the host of the party
told the victim and his friends to leave, but they became belligerent
and refused. The People introduced evidence that defendant had the
knives at the party prior to the fight in which the victim was killed,
but there is no evidence that defendant attempted to use them before
he became involved in the fight with the victim. Finally, I agree
with the majority and the dissent that the location of the victim’s
wounds are more consistent with defendant’s version of the events and
with an intent to injure the victim than with the intent to kill the
victim. Therefore, I agree with the dissent that the verdict is
against the weight of the evidence.

     The majority and the dissent conclude that, if we determine that
the conviction of murder in the second degree is contrary to the
weight of the evidence, our only possible remedial action is to
dismiss that count of the indictment. I disagree. It is true that
the Criminal Procedure Law states that, “[u]pon a reversal or
modification of a judgment after trial upon the ground that the
verdict . . . with respect to a particular count . . . is against the
weight of the trial evidence, the court must dismiss the . . .
reversed count” (CPL 470.20 [5]). The majority and the dissent read
the use of the word “must” in the statute to create a different rule
for review of the weight of the evidence than exists for review of the
legal sufficiency of the evidence. CPL 470.20 provides in the
preamble, however, that, “[u]pon reversing or modifying a judgment . .
. , an intermediate appellate court must take or direct such
corrective action as is necessary and appropriate both to rectify any
injustice to the appellant resulting from the error or defect which is
the subject of the reversal or modification and to protect the rights
of the respondent. The particular corrective action to be taken or
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directed is governed in part by,” e.g., CPL 470.20 (5) (emphasis
added). Thus, although CPL 470.20 (5) uses the word “must,” that
subdivision must be read together with the preamble, and thus it in
fact is only one of the possible corrective actions available to this
Court. We may take other corrective action as “appropriate . . . to
rectify [the] injustice to the appellant resulting from” the improper
weighing of the evidence by the jury (CPL 470.20).

     Furthermore, it is clear that the revision of the statute that
occurred in 1971, when the Criminal Procedure Law became effective,
was intended to create equality between appellate review of the weight
of the evidence and of the legal sufficiency of the evidence. Prior
to that date, there were cases decided pursuant to the former Criminal
Code indicating that a new trial was required if a judgment was
reversed on appeal because the verdict was against the weight of the
evidence (see e.g. People v Slaughter, 34 AD2d 50, 52; People v Stein,
15 AD2d 961), but dismissal of the indictment was the remedy if the
evidence was legally insufficient (see e.g. People v Rice, 35 AD2d
590, affd 28 NY2d 1, cert denied sub nom. Colon v New York, 402 US
905). In order to remove that distinction, the Temporary Commission
on Revision of the Penal Law and the Criminal Code recommended a
change in this law, as part of the enactment of the Criminal Procedure
Law. Thus, it is long settled that subdivisions (2) and (5) of CPL
470.20 “definitely work[] a change [in the existing state of the law]
by requiring a dismissal of the indictment or information upon any
reversal for either legal insufficiency or lack of weight of trial
evidence” (Richard G. Denzer, former Practice Commentaries to
McKinney’s Cons Laws of NY, Book 11A, CPL 470.20; see Temporary Commn
on Revision of the Penal Law and the Criminal Code, 1967 Staff Comment
to proposed CPL 240.40 [subsequently renumbered CPL 470.20]).
Consequently, in an early case interpreting the statute, the Court of
Appeals indicated that “the Legislature . . . in enacting the Criminal
Procedure Law introduced the present requirement for dismissal of an
accusatory instrument where a reversal is stated to be predicated on
factual considerations (CPL 470.20 [(2) - (5)])” (People v Mackell, 40
NY2d 59, 63). As Professor Preiser noted, “[i]n the case of weight of
the evidence, dismissal was chosen for the CPL rule on the theory that
as a matter of fairness no distinction should be made between the two
grounds for reversal (see original practice commentaries by Judge
Denzer, the revision commission’s director)” (Peter Preiser, Practice
Commentaries, McKinney’s Cons Laws of NY, Book 11A, CPL 470.20 at 248-
249 [emphasis added]). Inasmuch as the statute was designed to
equalize the results of both types of review, that same statute should
not be read to require different treatment based on the type of review
employed by the intermediate appellate court.

     Moreover, in addition to requiring that the indictment or the
relevant count thereof be dismissed when an appellate court determines
that the verdict is against the weight of the evidence with respect to
that charge, other subdivisions of CPL 470.20 state that, “[u]pon a
reversal of a judgment after trial for legal insufficiency of trial
evidence, the court must dismiss the accusatory instrument . . . [and
u]pon a modification of a judgment after trial for legal insufficiency
of trial evidence with respect to one or more but not all of the
                                 -11-                         1051
                                                         KA 12-02392

offenses of which the defendant was convicted, the court must dismiss
the count or counts of the accusatory instrument determined to be
legally unsupported and must otherwise affirm the judgment” (CPL
470.20 [2], [3]). Thus, the express language of CPL 470.20 (2)
through (5), read literally and without reference to other statutory
sections, requires dismissal of the indictment when this Court
concludes that a conviction is not supported by legally sufficient
evidence or that the verdict is against the weight of the evidence.
It is beyond question, however, that we may reduce a conviction to a
lesser included charge if we find that the evidence is not legally
sufficient to support it, and indeed the majority recommends that we
do so in this case.

     This Court’s power to reduce a charge derives from CPL 470.15,
which states in CPL 470.15 (2) (a) that, “[u]pon a determination that
the trial evidence adduced in support of a verdict is not legally
sufficient to establish the defendant’s guilt of an offense of which
he was convicted but is legally sufficient to establish his guilt of a
lesser included offense, the court may modify the judgment by changing
it to one of conviction for the lesser offense.” That section also
states, however, that an “intermediate appellate court must either
affirm or reverse or modify the criminal court judgment, sentence or
order. The ways in which it may modify a judgment include, but are
not limited to,” reduction of the crime to a lesser included offense
as set forth above (CPL 470.15 [2]). Here, I conclude that, although
the evidence is legally sufficient to support the conviction, the
verdict is contrary to the weight of the evidence. Given the
statutory language affording us the power to take the action that will
“rectify [the] injustice to the appellant resulting from” the improper
weighing of the evidence by the jury (CPL 470.20), and the additional
language indicating that we “are not limited to” the corrective
actions listed in the statute (CPL 470.15 [2]), in my view we should
modify the judgment by reducing the charge, as indicated herein.

     It has long been the rule in New York that a weight of the
evidence analysis in a homicide involves review of “the question as to
the defendant’s guilt, as to the grade of his offense if he was
guilty, as to his claim that he acted in self-defense or that the
homicide was the result of accident” (People v Gaimari, 176 NY 84, 94
[emphasis added]; see People v Romero, 7 NY3d 633, 640). This rule is
clearly contrary to the majority’s position that we may not reduce a
crime to a lesser included offense, i.e., to a different grade of
offense, upon our review of the weight of the evidence. Thus, I
disagree with the majority’s and dissent’s interpretation of the
statutory scheme.

     Most importantly, there are numerous cases in which the appellate
courts of New York have reduced convictions to lesser included
offenses upon finding that all or part of a verdict is against the
weight of the evidence (see e.g. People v Freeman, 98 AD3d 682, 683-
684; People v Grice, 84 AD3d 1419, 1420, lv denied 17 NY3d 806; People
v Harvin, 75 AD3d 559, 560-561; People v Alvarez, 38 AD3d 930, 934-
935, lv denied 8 NY3d 981; People v Molina, 8 AD2d 930, 931),
including reducing second-degree murder convictions to lesser included
                                 -12-                         1051
                                                         KA 12-02392

offenses (see e.g. People v Santiago, 97 AD3d 704, 706-707, lv granted
20 NY3d 935; People v Pickens, 60 AD3d 699, 701-702, lv denied 12 NY3d
928; see also People v Dudley, 31 AD3d 264, 264-265, lv denied 7 NY3d
866). Moreover, in People v Cahill (2 NY3d 14, 57), the Court of
Appeals reviewed the weight of the evidence in a case involving a
first-degree murder conviction pursuant to CPL 470.30 (1), and
concluded that “the evidence adduced on [the first-degree intentional
murder] count is legally sufficient, but that the verdict is against
the weight of the evidence.” Based on that conclusion, the Court of
Appeals reduced the conviction to second-degree murder (id. at 35).
This unequivocally countenances the reduction of a charge upon a
finding that the verdict with respect to it is contrary to the weight
of the evidence.

     Accordingly, based upon the broad wording of the statute, the
legislative history, and the numerous cases in which the other New
York State appellate courts have done so, I disagree with the majority
and the dissent and instead conclude that we may reduce the conviction
to manslaughter in the first degree based upon the conclusion that the
conviction of murder in the second degree is not supported by the
weight of the evidence. I further conclude that we should do so here.
Inasmuch as the majority concludes that we should reach the same
result, I concur in the result.

     FAHEY, J., dissents and votes to reverse in accordance with the
following Opinion: I respectfully dissent. The majority and my
concurring colleague would effectively eliminate the distinction
between legal sufficiency and weight on intermediate appellate review.
The practical effect of the majority’s position is that there would no
longer be any reason to preserve the issue of legal sufficiency for at
least intermediate appellate review because that issue could be raised
in the context of a review based on weight of the evidence.
Effectively, this means that the possible benefit of a legal
sufficiency review, i.e., conviction of a reduced charge and possibly
a reduced sentence, could be obtained without establishing any basis
for such an action.

                                  I

     The framework for this discussion is set out in CPL 470.15 (scope
of review) and 470.20 (corrective action). Legal sufficiency means
that, when viewed in the light most favorable to the People, the facts
support the charge as a matter of law. By contrast, review based on
the weight of the evidence means that, in viewing and comparing all
the facts when sitting as the thirteenth juror, a conclusion may be
reached beyond a reasonable doubt. The statutory framework provides
for different corrective actions for each basis of review. The issue
of legal sufficiency must be preserved (see CPL 470.05 [2]), and
corrective action ranges from reversal and dismissal to a modification
to a lesser included offense (see CPL 470.15 [2] [a]). Although
weight review requires no preservation (cf. CPL 470.05 [2]), the court
is limited to reversal and dismissal as its only remedy (see CPL
470.20 [5]).
                                 -13-                         1051
                                                         KA 12-02392

     Recently, the Court of Appeals clearly set out the difference
between these two forms of review in People v Danielson (9 NY3d 342,
348-349 [Kaye, Ch. J.]):

          “As we recently made clear in [People v Romero, 7
          NY3d 633, 636], weight of the evidence review
          requires a court first to determine whether an
          acquittal would not have been unreasonable. If
          so, the court must weigh conflicting testimony,
          review any rational inferences that may be drawn
          from the evidence and evaluate the strength of
          such conclusions. Based on the weight of the
          credible evidence, the court then decides whether
          the jury was justified in finding the defendant
          guilty beyond a reasonable doubt (People v Crum,
          272 NY 348 [1936]).

          “Essentially, the court sits as a thirteenth juror
          and decides which facts were proven at trial (see
          Tibbs v Florida, 457 US 31, 42 [1982]).
          Necessarily, in conducting its weight of the
          evidence review, a court must consider the
          elements of the crime, for even if the
          prosecution’s witnesses were credible their
          testimony must prove the elements of the crime
          beyond a reasonable doubt. Sitting as the
          thirteenth juror, moreover, the reviewing court
          must weigh the evidence in light of the elements
          of the crime as charged to the other jurors, even
          when the law has changed between the time of trial
          and the time of appeal (People v Noble, 86 NY2d
          814, 815 [1995]).

          “A verdict is legally sufficient when, viewing the
          facts in [the] light most favorable to the People,
          ‘there is a valid line of reasoning and
          permissible inferences from which a rational jury
          could have found the elements of the crime proved
          beyond a reasonable doubt’ (People v Acosta, 80
          NY2d 665, 672 [1993], quoting People v Steinberg,
          79 NY2d 673, 681-682 [1992]). A sufficiency
          inquiry requires a court to marshal competent
          facts most favorable to the People and determine
          whether, as a matter of law, a jury could
          logically conclude that the People sustained
          [their] burden of proof.”

                                  II

     Here we are presented with a request for only a weight-based
review. Indeed, as the majority recognizes, defendant failed to
preserve for our review any contention that the evidence is legally
insufficient to support the conviction, and he does not separately
contend on appeal that the evidence is legally insufficient to support
                                  -14-                         1051
                                                          KA 12-02392

the conviction. As a result, we are clearly limited to the framework
set out for weight-based review. We are not determining whether or
not the facts, when viewed in the light most favorable to the People,
are legally sufficient to support the conviction. Instead, we are
sitting as a thirteenth juror and weighing all of the credible
evidence to decide whether the jury, in this instance, was justified
in finding defendant guilty beyond a reasonable doubt.

     I agree with the majority’s recitation of the facts and analysis
of the evidence in this case. The People have not proved the charge
of murder in the second degree beyond a reasonable doubt. The
evidence is particularly deficient on the element of intent.

                                  III

     In view of these independent tests and conceptual distinctions, I
cannot conclude that a court, when asked to determine whether a
verdict is justified on the facts (see People v Bleakley, 69 NY2d 490,
493; see also CPL 470.15 [5]), may, on the law, reduce a verdict it
deems to be against the weight of the evidence to one convicting a
defendant of a lesser included offense. Weight of the evidence review
is an all-or-nothing analysis of what the verdict was, not an analysis
of what the verdict could have been. Conversely, legal sufficiency
requires an analysis of the adequacy of the proof, in establishing a
prima facie case.

     Our options are limited.   There is no basis upon which to create
a new third option.

                                   IV

     This writing would be incomplete without a few additional points.

     First, I join the majority in respectfully disagreeing with the
Second Department’s conclusion that CPL 470.15 (5) authorizes the
reduction of a conviction to a lesser included offense upon a
determination that the verdict is against the weight of the evidence.
CPL 470.20 (5) specifically and plainly provides that, “[u]pon a
reversal or a modification of a judgment after trial upon the ground
that the verdict, either in its entirety or with respect to a
particular count or counts, is against the weight of the trial
evidence, the court must dismiss the accusatory instrument or any
reversed count” (emphasis added). CPL 470.15 (5), in turn, provides
that “[t]he kinds of determinations of reversal or modification deemed
to be on the facts include . . . a determination that a verdict of
conviction resulting in a judgment was, in whole or in part, against
the weight of the evidence.” Reading CPL 470.15 (5) in conjunction
with the entirety of CPL article 470, including CPL 470.20 (5), leads
me to conclude that the reference to modification in section 470.15
(5) involves circumstances in which an intermediate appellate court
considers a multi-count indictment and determines that only one count,
rather than the entirety of the indictment, must be dismissed.

     Second, the decision of the Court of Appeals in People v Cahill
                                 -15-                         1051
                                                         KA 12-02392

(2 NY3d 14) does not change my view of the relevant paradigm of CPL
article 470. In Cahill, the Court of Appeals, inter alia, reviewed
two capital murder counts and concluded that the weight of the
evidence did not support the aggravating or “plus” factors required to
elevate murder in the second degree to murder in the first degree
(id.; compare Penal Law § 125.25 [1] with § 125.27 [1]), and it thus
reduced the conviction of two counts of capital murder to one count of
murder in the second degree (Cahill, 2 NY3d at 72). The circumstances
of that case, however, were unusual inasmuch as there the Court, in
relevant part, considered evidence relative to circumstances in which
a “typical” intentional murder under Penal Law § 125.25 (1) punishable
by a significant indeterminate sentence leaving open the possibility
of parole (see § 70.00 [3] [a] [i]) may be elevated to an “atypical”
intentional murder under section 125.27 (1) punishable by, inter alia,
death or life imprisonment without parole (§ 60.06). Indeed, in my
view, Cahill’s result is borne of its peculiarity, and the Court’s
determination that the defendant there committed intentional murder
but that the jury was not justified in concluding that he was eligible
for the enhanced sentencing (id. at 37-38) does not lead me to believe
that we may here reduce a conviction that is against the weight of the
evidence to one of a lesser included offense.

                                  V

     Accordingly, for the reasons set forth above, I conclude that the
judgment should be reversed, the indictment should be dismissed, and
the matter should be remitted to County Court for further proceedings
pursuant to CPL 470.45.




Entered:   February 14, 2014                    Frances E. Cafarell
                                                Clerk of the Court
