People v. Shanklin

Lewis, on the passenger side of the front seat, pointed the gun towards the driver’s side window to fire at Officer Guiry, who had shouted "freeze, police.” The defendant, sitting behind the steering wheel, leaned back from the line of fire. Lewis shot two rounds at the officers before being wounded by their return fire. During the exchange between Lewis and the police, the defendant was lying between the bucket seats. He remained in that position until arrested. The defendant was indicted for the attempted murder (Penal Law, § 110.00; § 125.25, subd 1) of Police Officers Guiry and Johnas and for assault (Penal Law, § 120.OS, subd 2).^[2] The indictment was dismissed on the ground the "evidence before the grand jury was not legally sufficient to establish the offense charged or any lesser included offense”. (CPL 210.20, subd 1, par [b].) Although the various provisions of the CPL defining what constitutes legally sufficient evidence to support an indictment are rather intricate (see CPL 190.65; 70.10, subds 1, 2; Denzer, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 70.10, p 347; cf. People v Sabella, 35 NY2d 158 , 167), the net effect of the statute is to require at least a prima facie case be presented to the Grand Jury (People v Mayo, 36 NY2d 1002 ). This means the evidence is legally insufficient if, unexplained and uncontradicted, it would still not warrant a conviction by a trial jury (People v Dunleavy, 41 AD2d 717 , affd 33 NY2d 573 ; cf. People v Mayo, supra, pp 1002, 1004 ). With respect to all three counts, the prosecution contends the defendant is liable for Lewis’ acts under section 20.00 of the Penal Law. In the context of this case, that section would require the People to establish that the defendant aided Lewis’ attempt to murder the police officers and that the defendant rendered such aid "with the mental culpability required for the commission” of attempted murder and assault. Since those crimes are committed only when the actor intends to cause death or physical injury (Penal Law, § 110.00; § 125.25, subd 1; § 120.25, subd 2), the defendant is guilty of those crimes through section 20.00 only if he aided Lewis with the "conscious objective” that Lewis kill or physically injure the officers (Penal Law, § 15.05, subd 1). The only evidence which arguably establishes such a conscious objective on the part of the defendant is the testimony that he ducked between the seats as Lewis was about to fire the first shot. Such action might reflect an intent that Lewis bring his gun to bear on the officers and murder them. But it is at least equally consistent with an intent to avoid injury to himself. Intent may of course be proven by circumstantial evidence, but when the proof of an essential element of the crime depends exclusively on circumstantial evidence, "the facts from which the inference of defendant’s guilt is drawn * * * must be inconsistent with his innocence and must exclude to a moral certainty every other reasonable hypothesis” (People v Bearden, 290 NY 478 , 480). Whether circumstantial evidence meets this test is a question of law, not one to be resolved by the finder of fact (People v Cleague, 22 NY2d 363 , 366). A conviction based on circumstantial evidence consistent with innocence must be reversed (see, e.g., People v Cleague, supra; People v Bearden, supra; People v Ligouri, 284 NY 309 ; People v Paige, 283 NY 479 ; People v Woltering, 275 NY 51 ; People v Fitzgerald, 156 NY 253 ). As to these cases it must be noted that prior to the enactment of the CPL it was uncertain whether the indictment should be dismissed upon a failure to make out a prima facie case (Pitler, New York Criminal Practice Under the CPL, § 14.40, p 812). The cited cases are all pre-CPL, and only in People v Cleague (supra) did the court dismiss the