STATEMENT OF THE CASE

PROCEDURAL HISTORY

This case is on appeal from the decision of the Supreme

Court of New York, Appellate Division, Fourth Department, that

affirmed the judgment rendered upon verdict of the Erie County

Court, Supreme Court of New York. The jury convicted the

Defendant of murder in the second degree for his accessorial role

in a homicide. This Court granted leave to appeal.

OPINION BELOW

In the decision of the Appellate Division, Fourth

Department, the court found that the weight of the circumstantial

evidence presented at trial was sufficient to establish the

Defendant’s guilt as an accessory beyond a reasonable doubt. The

court concluded that the Defendant shared the intent of Albini

because they were close friends, the Defendant helped Albini to

meet with Stec on the night she was killed, and the Defendant

arranged for the disposal of the body. People v. LaBruna, 66

A.D.2d 300, 382, 414 N.Y.S.2d 380, 303 (4th Dep’t. 1979).

Therefore, the court believed that the jury could reasonably

infer from these facts that the Defendant acted with the

requisite mental culpability as an accessory to murder because

the totality of evidence permitted no other reasonable

hypothesis. Id. at 302, 414 N.Y.S.2d at 381.

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The totality of the evidence, however, did not persuade the

dissenting judge. He viewed the circumstantial evidence as

failing to show that Gino Albini premeditated the murder, and

could not escape the conclusion that Albini may not have formed

the intent to murder until the moment he did so. If Gino Albini

did, in fact, act spontaneously, then “the record does not permit

an inference that the defendant took a purposeful part in the

homicide.” Id. at 307, 414 N.Y.S.2d at 384. Even allowing that

Gino Albini did premeditate the murder, the record failed to

show, that the Defendant formed the requisite independent design

to kill. Id. at 307, 414 N.Y.S.2d at 384.

Furthermore, the dissent felt that the intent of the

Defendant had been wrongly extrapolated from the acts of Gino

Albini, rather than from the acts of the Defendant himself. Id.

at 306, 414 N.Y.S.2d at 384. When the dissent examined the sole

conduct of the Defendant, namely his assistance in drawing the

victim from her home, his presence during the murder, and his

disposal of the body, the judge pointed out that all of these

acts could have been performed without a knowledge of Albini’s

intent to kill. Id. at 306, 414 N.Y.S.2d at 384. The crucial

inferential link was the conduct of the Defendant at the moment

of the murder, and the record here lacked that information: “No

evidence describes the conduct of the defendant prior to or

during the time Albini drew his gun and fired.” Id. at 306-07,

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414 N.Y.S.2d at 384. Furthermore, the only conduct that the

record could point to for verification of the Defendant’s intent

at the time of the shooting was his disposal of the body after

the shooting. Id. at 306, 414 N.Y.S.2d at 384.

Lastly, the dissent rejected the notion that the Defendant

had any desire to murder the victim. One could not glean a

motive from the friendship between the Defendant and Albini

because it was “hardly a circumstance of compelling weight.” Id.

at 307, 414 N.Y.S.2d at 385. Additionally, a lack of motive

evidence, “in some circumstances may tend to establish that the

defendant . . . lacked the requisite intent,” Id. at 307; 414

N.Y.S.2d at 385 quoting People v. Luciano, 46 N.Y.2d 767, 769,

413 N.Y.S.2d 651. Therefore, the dissenting judge called for a

reversal of the conviction.

STANDARD OF REVIEW

In order to determine whether the evidence before the jury

was legally sufficient to support a finding of guilt beyond a

reasonable doubt, the proper standard of review on appeal, “is

whether the evidence, viewed in the light most favorable to the

People, could lead a rational trier of fact to conclude that the

elements of the crime have been proved beyond a reasonable

doubt.” People v. Cabey, 85 N.Y.2d 417, 420, 626 N.Y.S.2d 20, 22

(1995).

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STATEMENT OF FACTS

The bulk of the evidence against the Defendant was derived

from the testimony of Sandra Newland, John Marinola, Patsy

Purpera, Police Chief Leo Donovan, Robert Brocato, and most

important, Nelson Willette. The district attorney granted

immunity to Mr. Willette from charges of second degree assault,

second degree burglary, and violating his state parole (R. at

533) in return for his testimony. Mr. Marinola and Mr. Purpera

also received immunity in exchange for their testimony, (R. at

296, 367) and the district attorney offered to write a letter to

the Governor on behalf of Robert Brocato seeking to commute his

prison sentence for his conviction of second degree murder (R. at

755).

THE EVIDENCE AT TRIAL

Sandra Newland mainly testified to the actions of Gino

Albini on the evening of June 2, 1970. She stated that Gino

Albini received a phone call that night, after which he became

visibly upset (R. at 227). He then left their apartment for an

hour, returned, took a gun from a drawer, paced around the house

while looking out the front window, and left when someone honked

a horn outside (R. at 227). Albini returned again an hour later

in the company of the Defendant and Susan LaPera (R. at 228).

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Albini’s hand was bleeding because he had shot himself (R. at

228, 232). Newland then drove Albini to New York City where he

received a tetanus shot (R. at 232). She also stated that Albini

was found dead shortly thereafter in a parking lot in Buffalo (R.

at 233).

John Marinola testified that Gino Albini called him on the

night of the murder and said that he had killed somebody (R. at

286). Subsequently, Marinola called Purpera and they joined

Albini, the Defendant, and Susan LaPera at Sandra Newland’s

apartment (R. at 283). Marinola, Purpera, LaPera and the

Defendant then drove to a field at the foot of Michigan Avenue

(R. at 289). The Defendant and Purpera went into the field

together and returned with a rolled up rug (R. at 291-92). They

placed the rug in the trunk, drove to an intersection near

Trenton Street, opened a manhole cover, and deposited the rug in

the sewer (R. at 294).

Marinola stated that his fear of Gino Albini led him to

offer his assistance to him on that evening (R. at 311). He said

that Albini was a “maniac” (R. at 311), “always very high strung

and nervous” (R. at 313), and a “half a million people” were

afraid of him (R. at 314). Albini was known as a killer who

would shoot you without provocation (R. at 314).

Patsy Purpera testified that he accompanied the Defendant

into a field to look for a body (R. at 346, 351). The Defendant

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found the body (R. at 351,) and stated to him, “Man, this chic is

heavy” (R. at 356). Purpera said that the Defendant never

acknowledged to him that he knew anything about the murder (R. at

363). When asked by defense counsel why he assisted Albini, he

said that he believed he had no other alternative (R. at 362).

He said he helped Albini out of fear of his violent reputation

(R. at 362-63).

Nelson Willette testified to a conversation that he had with

the Defendant sometime between May 1972 and August 1973 (R. at

495). Willette stated that the Defendant told him that he was at

the Ivanhoe Restaurant with Albini and Elayne Stec when Albini

got into a fight (R. at 482). The man Albini fought died the

next day (R. at 481). The Defendant then told Willette that he

and Albini were afraid of how Stec would withstand police

questioning, so they repeatedly tried to get Stec out of her

house (R. at 481). Stec was afraid of Albini after she witnessed

the Ivanhoe assault (R. at 482). Willette also stated that the

Defendant told him that Albini had murdered Stec (R. at 482), and

that he was with Albini when he murdered her (R. at 535). Prior

to his testimony in this case, Willette testified against his co-

defendants in a trial for conspiracy and extortion in exchange

for immunity (R. at 538). He refused to testify against the

Defendant (R. at 517) until April 14, 1976 when he was

apprehended during a burglary. At the time of his testimony,

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Willette was facing up to twenty-two years of prison (R. at 527)

for the burglary, assault, and parole violations charges. He was

granted full immunity from those charges (R. at 520).

Chief Leo Donovan offered conflicting testimony about law

enforcement’s involvement with Elayne Stec. Donovan testified

that the Buffalo Police were looking for Stec as a witness to the

death of Thomas Trent at the Ivanhoe Restaurant (R. at 410, 412).

He first testified that they originally learned of her identity

as a missing person through a report from the State Teletype

System (R. at 412). They received this report on July 28, 1970

(R. at 446), fifty-six days after Stec disappeared. He then

stated that they began looking for Stec three or four days after

she disappeared because they had “received word that she could be

a possible witness in a case not related to this” (R. at 412).

That word came on May 27 or 28, 1970 from FBI agent Frank Connors

who told Donovan that Stec witnessed the death of Thomas Trent at

the Ivanhoe (R. at 414). After that, the police called the Stec

household and spoke to Elayne Stec’s mother, and “arrangements

were made to go to her house and talk to her. The next time

Sergeant Dove went out there, Elayne Stec’s mother told him that

Elayne was missing” (R. at 412). However, Donovan testified that

Dove was sent to the Stec household on May 28, 1970 (R. at 448)

when he could not possibly have learned that Stec was missing

because she did not disappear until June 2, 1970.

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THE CHARGE TO THE JURY

The judge advised the jury that they could not find the

Defendant guilty based solely on the testimony of Nelson

Willette. He stated, “Our law provides that a person may not be

convicted of any offense solely upon the evidence of an admission

made by him without additional proof.” (R. at 1074) Since

Willette’s testimony was the bulk of the testimony that provided

this admission, the judge charged that the jury “must further

find other credible facts that the crime of murder was committed

by someone.” (R. at 1074) The jury returned a verdict of guilty.

SUMMARY OF THE ARGUMENT

No reasonable jury could have concluded that the Defendant

shared the intent of Gino Albini to murder Elayne Stec because

the evidence introduced at trial was legally insufficient to

sustain a guilty verdict. The evidence is legally insufficient

because it failed to establish that Gino Albini premeditated the

murder and, lacking premeditation, the Defendant could not have

shared the intent of the principal. Further, no evidence points

to the Defendant’s formation of an independent design to kill,

and this lack points to the inexistence of an intent to kill.

Furthermore, the conduct of the Defendant reflected in the record

fails to illuminate his intentions at the time of the killing.

The testimony of Nelson Willette regarding the motive for the

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murder may impute guilt to the principal actor, but one cannot

extract premeditation and a shared designed to kill from this

testimony alone. Therefore, no rational trier of fact could have

concluded that the circumstantial evidence in the record was

enough to render a verdict of guilty.

THE ARGUMENT

The circumstantial evidence in this case does not logically

compel the conclusion that the Defendant acted with the requisite

mental culpability to render him an accessory to intentional,

premeditated murder. According to New York Criminal

Procedure, “A person may not be convicted of any offense solely

upon evidence of a confession or admission made by him without

additional proof that the offense charged has been committed.”

N.Y. CRIM. PROC. LAW §60.50 (Consol. 2004). The offense charged

is second-degree murder, of which a person is guilty if, “with

the intent to cause the death of another person, he causes the

death of such person or of a third person.” N.Y. PENAL LAW §

125.27 (Consol. 2004). The Defendant was not charged as a

principal but as an accessory, and an accessory is defined as

follows:  “When one person engages in conduct which constitutes

an offense, another person is criminally liable for such conduct

when, acting with the mental culpability required for the

commission thereof, he solicits, requests, commands, importunes,

or intentionally aids such person to engage in such conduct.”

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N.Y. PENAL LAW § 20.0 (Consol. 2004). In this case, the jury

needed to find, beyond a reasonable doubt, that Gino Albini both

committed and premeditated the murder of Elayne Stec, and that

the Defendant shared his intent to kill the victim. In order to

show that the Defendant shared the intent of the principal, the

evidence must sufficiently prove that the Defendant formed an

independent design to kill the victim.

While the record contains the requisite evidence to show

that Gino Albini murdered Elayne Stec, it lacks proof of the

murder’s premeditation. The absence of that proof negates the

possibility that the Defendant could have shared the intent of

the principal or could have formed an independent design to kill.

Even if premeditation can be inferred, the record still fails to

prove the Defendant accessorily liable because presence at the

murder scene and the disposal of the body are wholly insufficient

to lead a rational trier of fact to the conclusion that the

Defendant formed an independent design to kill. Therefore, the

circumstantial evidence is legally insufficient to lead a

reasonable jury to a guilty verdict.

I.ALBINI’S CONDUCT DOES NOT EXHIBIT A PREMEDITATED PLAN TO MURDER.

The inescapable deficiency in the People’s proof is the

failure to establish that Gino Albini premeditated his murderous

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acts. This evidentiary shortage results in a failure to prove

the offense charged. Without evidence sufficiently supportive of

premeditation, the record cannot sustain the conclusion that the

Defendant colluded with the principal in the premeditation of the

crime.

The primary testimony concerning Albini’s conduct lacks

legal sufficiency to show premeditation. That evidence came from

Sandra Newland, John Marinola and Patsy Purpera. Newland

testified that she was with Albini that night when he received a

phone call, after which he seemed upset. Albini then left,

returned, retrieved a gun from a drawer and left again. He

returned with a bloody hand and in the company of the Defendant.

Marinola and Purpera both testified, in exchange for immunity,

that Albini said he had killed somebody on that night. When

viewed in the light most favorable to the People, these facts may

be sufficient to establish that he murdered Stec, yet they are

deprived of any value in showing that Albini premeditated the

murder. The lack of a preconceived murderous intention rules out

the possibility that there was a murder plan stirring between the

Defendant and Albini that evening. The law provides that “guilt

can be proven if it is shown that the defendant was a willing and

active participant in a plan or scheme, the foreseeable, yet

unexpected, consequence of which was the victim’s death. People

v. Veneziano, 123 A.D.2d 725, 726, 506 N.Y.S.2d 985, 986 (2nd

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Dep’t. 1986). No plan or scheme here is evident from the facts

on the record, therefore the jury could not possibly have

concluded that the Defendant participated in one.

II.THE DEFENDANT FORMED NO INDEPENDENT DESIGN TO

KILL.

The evidence in the record cannot reasonably sustain the

view that the Defendant formed his own independent design to kill

Elayne Stec. Absent direct proof of an agreement or plan made in

advance, the intent of the all participants must be shown through

the formation of an independent design to kill. People v.

Monaco, 14 N.Y.2d 43, 248 N.Y.S.2d 41 (1964). The judge in

Monaco stated, “In the absence of some statutory synthesis of

intention which makes out any homicide to be murder, intended or

not, whether a homicide is committed ‘with a design to effect

death’ depends on adequate proof of such a design by each person

charged.” Id. at 44, 248 N.Y.S.2d at 41.

The facts in Monaco reflected that Monaco and his companion

went looking for members of a rival gang to assault and

intimidate. Fasano was armed with a gun and Monaco knew that he

was carrying a loaded weapon. Fasano eventually used it to kill

the deceased in Monaco’s presence. The evidence reflected

testimony that the original intention of both Monaco and Fasano

was to intimidate and scare a rival gang member, but Fasano ended

up shooting the deceased. The judge held that, “A spontaneous

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and not concerted or planned use of the weapon to kill is not,

without more, attributable to the companion whose guilt in a

joint design to effect death must be established beyond a

reasonable doubt. An agreement to murder must be shown to

exclude other fair inferences.” Id. at 43-44, 248 N.Y.S.2d at

41. In the present case, no evidence reflects that the Defendant

knew that Gino Albini was carrying a loaded hand gun when he

killed Stec, let alone that there was any concerted use of the

weapon. Nothing in the record challenges the possibility that

Gino Albini spontaneously shot Stec, and a spontaneous act of

homicide is not attributable to the Defendant in the absence of a

joint plan to kill. (See Monaco, “Where the record shows merely

a spontaneous act of homicide by one, the other is not, without a

greater showing of a personal design to kill, guilty of murder.”

Id. at 44, 248 N.Y.S.2d at 41.) As the dissenting judge below

denoted, “ No agreement to kill, no purpose to kill, no expressed

intent to kill, can be gathered from the evidence.” Id. at 43,

248 N.Y.S.2d at 41. The jury’s conclusion that accessorial

liability attached to the Defendant in the face of the missing

elements that comprise an independent design to kill is plainly

irrational.

III.MERE PRESENCE AT THE SCENE OF THE CRIME DOES NOT DOES

PROVE INTENT.

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It is well-established that presence alone during the

perpetration of a crime is wholly insufficient for accessorial

liability to attach to the witness. Presence alone is

insufficient to prove someone an accessory because presence is

purely objective. Accessorial liability requires more: a showing

of the subjective intent of the accessory while the crime is

being committed. The judge in People v. Reyes, 82 A.D.2d 925,

926, 440 N.Y.S.2d 674, 675 (2nd Dep’t. 1981) stated "Mere

presence at the scene of a crime with knowledge of its

perpetration does not render the observer accessorily liable

therefore.” Here, the only fact on the record is that the

Defendant was present at the scene at the time of the murder, but

evidence as to his behavior when Albini pulled the trigger is

missing.

The case of People v. LaBelle, 18 N.Y.2d 405, 276 N.Y.S.2d

105 (1966) is applicable. Richard LaBelle and his brother Edward

picked up a girl in their car and Edward LaBelle subsequently

raped her twice. He then murdered her outside of the car while

Richard was seated inside the car. The Court of Appeals reversed

Richard LaBelle’s conviction of premeditated murder because the

People’s evidence was circumstantial and insufficient. The only

evidence that the prosecution put forth was Richard LaBelle’s

presence at the crime scene and his assistance in the disposal of

the body, and no evidence was offered to rule out the possibility

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that Richard LaBelle had no knowledge of his brother’s homicidal

intentions. Therefore, the Court said that one does not become

an abettor to a principal because, “in an objective sense this

person was helpful or of use to the actual perpetrator of the

crime. There is a subjective element as well.” Id. at 412, 276

N.Y.S.2d at 110.

Just like the evidence in LaBelle, the evidence here only

reflects that the Defendant was present when the crime occurred,

he had knowledge of its perpetration, and assisted in the

disposal of the body. These circumstances merit only mere

suspicion as to the Defendant’s intentions at the crime scene.

When a jury draws inferences from the circumstantial evidence in

a case, “it must appear that the inference of guilt is the only

one that can fairly and reasonably be drawn from the facts, and

that the evidence excludes beyond a reasonable doubt every

reasonable hypothesis of innocence.'" People v. Spencer, 1

A.D.3d 709, 711; 767 N.Y.S.2d 154, 156 (3rd Dep’t. 2003). For

the jury to conclude that these elements imputed the requisite

mental culpability onto the Defendant is unreasonable because

they all fail to illuminate what the Defendant intended at the

time of the murder. Without that crucial behavioral link, these

elements are wholly insufficient to establish the liability of

the Defendant as an accessory because the inference to be drawn

only creates mere suspicions about the Defendant’s intent. Mere

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suspicion is not enough to construe that the inference of guilt

is the only one that can be fairly and reasonably drawn. (See

People v. Cleague, 22 N.Y.2d 363, 376, 292 N.Y.S.2d 861, 865,

(1968)“the danger with the use of circumstantial evidence is that

of logical gaps . . . which, if undetected, elevate coincidence

and, therefore, suspicion into permissible inference.”)

The recent Court of Appeals decision People v. Ficcarota,

91 N.Y.2d 244, 668 N.Y.S.2d 993 (1997) is distinguishable. The

facts in Ficcarota are more probative of a community of purpose

between the principal and the Defendant. Unlike the case at bar,

on one occasion prior to the crime, the efendant brandished a gun

at the victim, and demanded that he comply with the demands of

his employer Angelo Boccadisi. The natural inference to be drawn

from this episode is that a failure of the victim to comply with

his demands would result in further action, possibly involving

the use of the gun. This is conduct that imputes both motive and

intent to the Defendant and also the kind of conduct that the

record here is lacking. Furthermore, the victim in Ficcarota

testified as to the Defendant’s conduct during the crime. We

know that the defendant Ficcarota exited the car after Boccadisi

stopped it in a desolate field, saying he had somewhere to be.

At the same time, Boccadisi emerged from the trunk area wearing a

white coat, the front of which he held shut with his hand.

Ficcarota’s exit, which conveniently occurred at the exact moment

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that Boccadisi emerged to kill the victim, speaks of a

coordinated effort between the two.

By contrast, we do not know what the Defendant LaBruna was

doing when Albini shot Stec. Therefore, the inference that he

intended her murder does not logically emanate from this missing

block of time, and “circumstantial evidence is as nothing unless

the inferences to be drawn from the circumstances are logically

compelling.” People v. Cleague, 22 N.Y.2d 363, 367, 292 N.Y.s.2d

861, 865 (1968). Moreover, this Court recognized in People v.

Ozarowski, 38 N.Y.2d 481, 490-91, 381 N.Y.S.2d 438, 443-44

(1976), that “while the ultimate act of violence may be used by

the trier of facts in making the inference of intent as to the

defendant who actually struck the blow, that act is not

determinative of the intent of the other conspirators.”

Therefore, Albini’s pulling of the trigger is not probative of

the Defendant’s intentions. (See also People v. Bray, 99 A.D.2d

470, 470 N.Y.S.2d 50, 51 (2nd Dep’t. 1984), “The People did not

prove such [specific] intent on the part of the defendant and his

accomplices’ intent should not be imputed to him.”) This Court

recognizes that “’a defendant’s intent is the product of the

invisible operation of the mind,’ to be determined, inevitably,

on the basis of the defendant’s statements and conduct.” People

v. Samuels, 99 N.Y.2d 20, 23, 750 N.Y.S.2d 828, 830-31 (2002).

The absence of any evidence regarding the Defendant’s statements

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or conduct at the scene reveals nothing as to his state of mind,

the crucial element of intent.

IV. THE EVIDENCE OF MOTIVE IS INSUFFICIENT TO SHOW INTENT.

There was not a strong enough showing in the record of

motive to assign intent to the Defendant. The law provides that

motive and the actions and statements of the defendant comprise

the substance of intent for they are the telltale fingerprints of

one’s state of mind. Motive derives its importance as an element

of proof from its value in helping to ascertain the existence of

intent. See New York Criminal Practice § 69.2 (Matthew Bender &

Co., Inc. et al. eds., 2004). Since the record is scant on

actions or statements of the Defendant that warrant probative

merit, a reasonable jury needed to rely on the existence of

motive to deduce the intent of the Defendant. Motive is not a

prerequisite to committing murder, but murder can never be

committed without intent, and the absence of motive, even if not

decisive, weighs heavily on the question of intent. People v.

Dinser, 192 N.Y. 80, 85 (1908). Here, the Defendant’s motive is

gravely questioned.

Nelson Willette’s testimony provided the only evidence of

Gino Albini’s motive to kill Elayne Stec. He testified that the

Defendant told him that they were concerned Stec may give the

police information about Albini’s involvement in the murder of

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Thomas Trent at the Ivanhoe Restaurant. The murder at the

Ivanhoe occurred in November 1969 and Elayne Stec was killed on

June 2, 1970. The presumption is that Albini feared Stec would

testify against him, so he murdered her. However, the FBI did

not inform the police of Stec’s status as a possible witness

until May 28,1970 – a full six months after the Ivanhoe incident.

That information led to only one phone call to Stec’s mother, and

no evidence reflects that Stec knew the police wanted to talk to

her nor that Albini knew the police had learned of her identity.

In order for this motive theory to hold up, Albini must somehow

have known that the police were on to Stec, but nothing shows how

he would have known if in fact he did know. Moreover, if Albini

was so truly concerned about Stec’s standing as an eye witness,

it seems much more logical that he would have murdered her long

before June.

John Marinola and Patsy Purpera testified that Albini was a

skittish, feared and violent man who needed no provocation to act

violently. When asked if he feared Albini, Marinola replied, “So

don’t have a million people” (R. at 314). Willette testified

that Elayne Stec feared Albini because he was a vicious character

and refused to meet him out of her house. If she was too afraid

to meet him out of the house, one must seriously contemplate from

where she would summon the bravery to testify against such a man.

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This Court found itself faced with similar circumstances in

People v. Slaughter, 56 N.Y.2d 993, 453 N.Y.S.2d 632 (1982) where

the Court set aside the jury verdict and dismissed the

indictment. In Slaughter, the evidence at trial revealed that

the Defendant was a close friend of Sam Wysinger who had an

ongoing dispute with the victim Thompson. Minutes before the

slaying of Thompson, Wysinger and Slaughter were seen outside of

a bar when Thompson and friends passed them. Thompson proceeded

to another bar and while awaiting admission, was shot in the neck

with a shotgun. Friends of Thompson saw Wysinger and another

fleeing the scene, and the Defendant running in the vicinity of

the slaying with a pistol in his hand. Consequently, the

prosecutor attempted to show the existence of a motive in the

Defendant whose car had been set afire by unidentified people one

hour before the shooting. The Court rejected this as proper

proof of motive and contended that the only proof left to the

prosecutor was Slaughter’s friendship with Wysinger and his

presence in the area of the murder with a pistol. The Court

noted that Slaughter knew of neither Wysinger’s possession of the

shotgun or his intent to kill the victim, and then reasoned as

follows:

The evidence simply is insufficient to permit all the inferences . . . Nothing shows intent, or complicity, or knowledge of the pending crime. Nor is there strong proof of motive. These questions shed enough doubt on the existence of any motive on behalf of either the

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principal or the Defendant that the jury’s conclusion that the Defendant acted with an shared intent to kill must be reversed.

Id. at 995, 453 N.Y.S.2d at 632.

These same questions exist in the case at bar, and they shed

enough doubt on the existence of any motive on behalf of either

the principal or the Defendant that the jury’s conclusion that

the Defendant acted with a shared intent to kill must be

reversed.

CONCLUSION

The Defendant’s conviction should be reversed because no

reasonable jury could have concluded the Defendant’s guilt from

the circumstantial evidence. The evidence failed to show that

Gino Albini premeditated the murder of Elayne Stec, that the

Defendant knew of and shared in this scheme, or that the

Defendant had sufficient motive to support an inference of shared

intent. The presence of the Defendant at the scene of the crime

does not render him an accessory because Albini’s murderous

behavior may not be imputed to him. The record is also fatally

wanting of any evidence of the Defendant’s behavior at the moment

of the crime. These deficiencies lead one to only speculate

about the mind set of the Defendant Carmen LaBruna, and the

careful analysis required of a jury in evaluating the merits of

circumstantial evidence leaves no room for speculation.

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Therefore, the jury’s verdict was reached without sufficient

reason and must be set aside.

DATED: April 4, 2004Buffalo, New York

Respectfully Submitted,

_______________________LORA E. COMO, ESQ.Attorney for Defendant-AppellantMAILBOX 561

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