People v. Allah

Order, Supreme Court, Bronx County (Harold Silverman, J.), entered January 16, 1985, which set aside the jury verdict finding defendant guilty of murder in the second degree, reversed, on the law, the verdict reinstated and the matter remanded for sentencing.

Judgment, Supreme Court, Bronx County (Harold Silver-man, J.), rendered November 13-14, 1984, which convicted defendant of attempted murder in the second degree, robbery in the first degree and criminal possession of a weapon in the second degree and sentenced him as a persistent felony offender to two concurrent 25-year-to-life prison terms and lesser terms, unanimously affirmed.

Defendant’s conviction by the jury of murder in the second degree, and lesser charges, arises from an incident in the early morning hours of June 19, 1982 when defendant and *485two companions engaged in a dispute with Larry "Messiah” Scott. Defendant and Scott were members of the "Five-Percenter” sect, and the dispute centered around Scott’s assertions that he was "God” and his lack of attendance at the sect’s meetings. Scott was shot and killed by one of defendant’s companions, while defendant shot and robbed one Edward Greene, a friend of Scott’s who had attempted to intervene on his behalf as the dispute escalated. In response to defendant’s CPL 330.30 (1) motion, Justice Silverman set aside defendant’s conviction for the murder of Scott on the ground that defendant did not share the intent of his companion to kill Scott.

Viewing the evidence in the light most favorable to the prosecution, as we must when reviewing the legal sufficiency of the evidence (see, People v Contes, 60 NY2d 620), it is clear that the People proved that defendant shared the intent of his unapprehended associate to kill Scott. The evidence showed that the incident began on a street corner near the "FivePercenters’” religious school, where the defendant and his companions were engaged in a heated argument with Scott concerning their disapproval of Scott’s religious beliefs and conduct. Scott, who was unarmed, offered to settle the debate by fighting. At this point, one of defendant’s companions pulled out a gun which had previously been hidden under his shirt and when Scott’s friend, Greene, attempted to intercede, defendant Allah came to his companion’s assistance by taking out his own gun and shooting Greene in the back, whereupon defendant’s companion also began shooting. When Scott and Greene attempted to flee, they were pursued by defendant and his companion, with the companion shooting repeatedly at Scott, while defendant followed and caught up with Greene, who had fallen to the ground as a result of his initial wound. As Scott was gunned down by the accomplice, defendant placed his gun to Greene’s head, robbed him of his money, shot him again, and finally pistol-whipped him. Greene survived and testified at the trial.

We find that these facts constituted sufficient evidence to sustain the jury’s finding that defendant shared his companion’s intent to kill Scott. The defendant and his companion were both armed and both engaged in a heated dispute with Scott over his differences with their shared religious beliefs. Defendant intentionally aided his companion by intercepting and shooting Greene, when the latter attempted to intercede and prevent the companion from shooting Scott. Upon the victims’ attempt to flee, defendant joined with his companion in chasing after them. Scott’s death was the result of a rapidly *486escalating chain of events arising from the initial confrontation, in which defendant participated from the outset, and in which he continued to participate after his companion’s intentions became clear. (People v Bosque, 78 AD2d 986, cert denied 451 US 992.)

The facts in the instant case are clearly distinguishable from those in the cases relied upon by the trial court in setting aside the verdict. Unlike those cases, the prosecution here proved far more than defendant’s mere presence at the scene when his companion effected the killing. Here there was proof that defendant was armed when he joined the argument, that he participated in the initial heated confrontation and that he facilitated his partner’s deadly attack on Scott by, in the first instance, shooting Greene to deflect his intervention on Scott’s behalf when defendant’s partner pulled his gun and by, thereafter, in concert with his unapprehended partner, pursuing Greene and Scott. Defendant’s intent to participate in the homicide is the only inference that may fairly be drawn from this circumstantial evidence, and the jury’s conviction should be reinstated. (See, People v Whatley, 69 NY2d 784.)

We have examined the points raised by the defendant on his appeal from the judgment of conviction and find them without merit. Concur—Sandler, J. P., Ross, Rosenberger and Ellerin, JJ.