The accused man and his accomplice as well as the two female complainants boarded a subway train at 125th Street. Once on the train, the accused man and his accomplice sat down near, although not immediately beside, each other and engaged in a conversation.
A New York Criminal Lawyer said that thereafter, the accomplice began to verbally harass the complainants. The accused man did not join in and in fact eventually moved by himself to a different subway car. When the train arrived at Zerega Avenue, the complainants got off followed by the accused man’s accomplice. It was shortly after leaving the train that the complainants were accosted on the subway platform by the accomplice and robbed of various possessions at knifepoint. One of the complainants testified that while the accomplice relieved her and her companion of their possessions, the accused, who had apparently also exited the train at Zarega Avenue, stood some 65 to 75 feet away; he was situated at the top of the stairwell providing access to and from the platform. While the first complainant at first claimed to have observed the accused glancing alternately down the stairs and in the direction of the ongoing robbery, she later stated that the accused was simply standing at the top of the stairs–that she could not see his face and that she did not witness any communication between the accused and the accomplice while the robbery was in progress.
Once the robbery was complete, the accomplice joined the accused and the two fled the station together. A short time later, when they were apprehended in the vicinity of the station, the accomplice was still in possession of the items taken from the complainants; the accused, on the other hand, had no stolen property and disclaimed any relationship with the accomplice, stating that he don’t know the guy and he was just asking him for directions.
The accused was convicted of robbery in the first degree on the theory that he had acted as the accomplice. He now seeks to have the judgment of conviction reversed and the indictment dismissed upon the ground that the evidence was insufficient to establish his complicity in the robbery or, alternatively, to obtain a new trial upon the ground that his request for a circumstantial evidence charge was erroneously denied.
In arguing that the evidence against the accused was not wholly circumstantial, the Jury point to the testimony indicating that the accused and his accomplice conversed shortly before the robbery and to the evidence of the accused man’s presence on the subway platform while the robbery was in progress. Manifestly, however, neither evidentiary component established more than a circumstance which in combination with the other circumstantial evidence might have lent support to an inference that the accused had in fact intentionally aided the accomplice in the commission of the robbery. Neither piece of evidence, nor for that matter any of the other evidence in the case, directly established the accused man’s commission of any element of the criminal act charged. Obviously, the accused man’s inaudible conversation with the accomplice prior to the crime cannot be adduced as direct evidence of the accused man’s participation in the robbery. While the accused man’s presence at the top of the stairway during the robbery might well, in combination with all the other circumstances to which the complainants testified, have supported the inference that he was acting as a lookout for the accomplice, there was no evidence establishing directly that the accused acted in that blameful capacity; he did not call out to his accomplice or in any other way unambiguously signify a connection between his presence and the criminal act transpiring some 70 feet away. Indeed, a Suffolk County Criminal Lawyer said the cases uniformly treat evidence unambiguously establishing no more than presence as circumstantial.
The majority, while conceding that the evidence bearing upon the accused man’s intent was wholly circumstantial, is apparently of the view that there was other evidence in the case, presumably bearing on the accused man’s conduct, possible to characterize as direct. The majority, however, notably fails to specify the evidence to which it suggests preferring instead to describe the evidence as developing entirely along the same linear plane.
Contrary to the majority’s suggestion, the fact that the case rested on eyewitness accounts of the robbery does not render the proof against the accused man in any measure non-circumstantial. The issue is not whether the relevant events were directly perceived, but rather what the witnesses’ perceptions, direct as they may have been, may be said to have established about the crime charged, and, more particularly, what they may be said to have established about the criminal act charged without the aid of intervening inference. The evidence, eyewitness though it may have been, established directly no more than that the accused man was present on the subway platform during the robbery; the connection between his presence and the robbery, while conclusive, was not patent to the witnesses and, as a consequence, was not directly proved by their testimony.
The accused man and his accomplice were observed by eyewitnesses at or near the crime scene acting in a manner possibly but not necessarily interpretable as that of a lookout. Of course, is not to say that the evidence against the accused, circumstantial though it was, was not strong, for as has often been observed circumstantial evidence may be every bit as implied as direct evidence and the evidence was at least sufficiently attributed to support the verdict. The accused man’s right to a circumstantial evidence charge, however, did not hinge on the ultimate strength of the evidence but upon its complete lack of unmediated valid significance. Unless there is some sound analytic and/or precedential basis for the conclusion that any portion of the evidence was directly significant of the accused man’s participation in the robbery, and certainly none has been identified, the accused was entitled, as per his request, to have the jury instructed as to the circumstantiality of the evidence and as to the high degree of certainty necessary to support any inference of guilt.
Finally, although the case against the accused was strong, it was by no means overwhelming. While the evidence showed that he had associated with his accomplice before and after the crime and that during the robbery he stood at a place which although distant from the spot where the robbery occurred was one from which he might have acted as a lookout or blocked the complainants’ way, it also showed that he removed himself from his accomplice’s company during the man’s verbal harassment of the complainants and remained apart from him until the robbery was completed. The entirely plausible hypothesis that the accused was merely an associate of the accomplice who awaited but did not assist him during the commission of the crime might have militated against a finding of guilt if the jury had been properly instructed that an inference of guilt was not permissible while there remained reasonable alternative hypotheses consistent with accused man’s innocence. Given the state of the evidence, it was for the jury to consider and either accept or reject the reasonableness of any such alternative hypotheses supported by the evidence and, in the end, to determine whether the inference of guilt was sufficiently compelling. However, as the jury was not properly instructed it is not clear that the essential deliberative responsibility was discharged. Nor as a consequence, can it be said whether, if it had been, the accused would still have been convicted.
The judgment convicting the accused man, after a jury trial, of two counts of robbery and sentencing him as second violent felony offender, to concurrent terms of 6 to 12 years, should be reversed and the matter remanded for a new trial.
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