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

255
KA 10-01056
PRESENT: SMITH, J.P., FAHEY, SCONIERS, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CRUSHAWN EVANS, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Onondaga County
(John J. Brunetti, A.J.), rendered September 18, 2009. The judgment
convicted defendant, upon a nonjury verdict, of assault in the second
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, Onondaga County, for proceedings
pursuant to CPL 470.45.

     Memorandum: Defendant appeals from a judgment convicting him
upon a nonjury verdict of assault in the second degree (Penal Law
§ 120.05 [4]). The conviction arises from the accidental misfire of a
sawed-off shotgun in Lincoln Park in Syracuse. Defendant failed to
preserve for our review his contention that the People failed to
establish that he had the requisite reckless mental state and thus
that the evidence is legally insufficient to support the conviction
inasmuch as he failed to move for a trial order of dismissal
specifically directed at the alleged insufficiency (see People v Gray,
86 NY2d 10, 19).

     Defendant further challenges the weight of the evidence
supporting the verdict, however, and we thus “necessarily review the
evidence adduced as to each of the elements of the crime[] in the
context of our review of defendant’s challenge regarding the weight of
the evidence” (People v Caston, 60 AD3d 1147, 1149). “[B]ased on all
the credible evidence[, we conclude that] a different finding would
not have been unreasonable,” and we therefore conduct an independent
review of the trial evidence (People v Bleakley, 69 NY2d 490, 495).
“The Court of Appeals has recently reiterated that, in reviewing the
weight of the evidence, we must ‘affirmatively review the record;
independently assess all of the proof; substitute [our] own
                                 -2-                           255
                                                         KA 10-01056

credibility determinations for those made by the [factfinder] in an
appropriate case; determine whether the verdict was factually correct;
and acquit a defendant if [we are] not convinced that the [factfinder]
was justified in finding that guilt was proven beyond a reasonable
doubt’ ” (People v Oberlander, 94 AD3d 1459, 1459, quoting People v
Delamota, 18 NY3d 107, 116-117). Upon our review, we conclude that
the People failed to establish beyond a reasonable doubt that
defendant “engage[d] in conduct which create[d] or contribute[d] to a
substantial and unjustifiable risk that serious physical injury to
another person by means of a deadly weapon . . . [would] occur”
(CJI2d[NY] Penal Law § 120.05 [4]; see generally Delamota, 18 NY3d at
116-117). The People’s theory of the case was that defendant’s
recklessness was demonstrated by conduct including bringing a loaded
firearm, i.e., a sawed-off shotgun, to the park; possessing that
firearm in proximity to others; and holding it pointed at the victim
while defendant was imbibing alcohol, disregarding the risk that it
might misfire. The People failed to establish beyond a reasonable
doubt that defendant engaged in any of those activities. Indeed, they
failed to present any evidence establishing that defendant brought the
gun to the park; that the gun belonged to defendant; and that
defendant had any knowledge that the gun was loaded with live
ammunition or was aware of—and consciously disregarded—the risk that
it might misfire (see generally Penal Law § 15.05 [3]). The only
witness who observed defendant with the gun testified that as
defendant “was picking it up it just went off.” None of the three
witnesses to the shooting, including the witness who observed
defendant with the gun, testified that defendant pointed the gun at
the victim at any time. Thus, although there was undisputed evidence
of a serious physical injury and credible testimony that there was a
deadly weapon in the park, we conclude that Supreme Court, as the
factfinder, “failed to give the evidence the weight it should be
accorded on the issue whether defendant recklessly caused [serious]
physical injury” by means of a deadly weapon or a dangerous instrument
(People v Groth, 71 AD3d 1391, 1392). Consequently, we reverse the
judgment of conviction and dismiss the indictment. In light of our
determination, we need not consider defendant’s remaining contentions.




Entered:   March 22, 2013                      Frances E. Cafarell
                                               Clerk of the Court
