People v. Bosque

Judgment affirmed. Memorandum: Defendants were found guilty by a jury of the crimes of murder in the second degree and criminal possession of a weapon in the second degree. The testimony established that both defendants commenced an assault upon the victim on Virginia Street in the City of Buffalo; that as the victim fled, defendant Colon drew a gun and shot at him; that both defendants pursued the victim until they caught him on Whitney Place; that both defendants, joined by an unidentified third party, pummeled and kicked the victim, driving him to the ground; that the three assailants then walked down Whitney Place toward Virginia Street, but the two defendants retraced their steps, Colon in the lead; that as Colon came upon the victim, the victim rose to his feet and Colon shot him; that defendant Bosque walked up to the victim, looked at him, and then both defendants fled the scene. Defendants assert that the identification of defendants by the witness Senquis, who observed that part of the assault which took place on Virginia Street, and that by the witness Fuentes, who observed the remainder of the incident on Whitney Place should have been suppressed. We cannot agree. The witness Senquis had known both defendants for some five years prior to the date of the crime and his in-court identification was completely independent of any prior viewing of defendants’ photographs (see People v Bryant, 39 AD2d 80, affd 31 NY2d 744). The witness Fuentes identified both defendants from a group of photographs in a procedure which was entirely free from suggestion. Defendants now, for the first time, assert that the trial court erred in its instruction of “presumed intent” (see Sandstrom v Montana, 442 US 510). Since the defendants failed to object to the charge at trial, the error, if any there was, is not reviewable (People v Thomas, 50 NY2d 467; People v Tremblay, 77 AD2d 807). Additionally, defendant Bosque contends that the evidence was insufficient to prove that he shared defendant Colon’s intent to murder the victim. While we agree that Bosque cannot be guilty of murder in the second degree unless he had the intent to cause the death of the victim, we do not agree that the evidence was insufficient to prove that intent. The shooting on Whitney Place was the culmination of a continuum of events in which Bosque participated and continued to participate after it was clear that Colon was acting with homicidal intent. In such cirumstances, it was reasonable for the jury to conclude that it was equally the purpose of both defendants to kill the victim (compare People v Monaco, 14 NY2d 43 with People v May, 9 AD2d 508). Finally, a person is criminally liable for the conduct of another when he “intentionally aids such person to engage in such conduct” (Penal Law, § 20.00). While defendant Bosque did not personally have control of the gun, it could reasonably be found that he aided Colon in the latter’s use of the gun unlawfully against the victim (Penal Law, §§ 265.03, 10.00, subd 8). All concur, except Schnepp and Doerr, JJ., who dissent and vote to reverse the indictment in the following memorandum.