People v. Lopez

— Appeal by the defendants from two judgments (one as to each of them) of the Supreme Court, Kings County (Goldstein, J.), both rendered November 15, 1982, convicting each of them of manslaughter in the first degree, reckless endangerment in the first degree, and criminal possession of a weapon in the second degree, upon jury verdicts, and imposing sentences.

Ordered that the judgment as to the defendant Lopez is affirmed; and it is further,

Ordered that the judgment as to the defendant La Mota is modified, on the law, by reversing the convictions of reckless endangerment in the first degree and criminal possession of a weapon in the second degree, vacating the sentences imposed thereon, and dismissing those counts of the indictment. As so modified, the judgment as to the defendant La Mota is affirmed.

The evidence adduced at trial, viewed in the light most favorable to the People (see, People v Contes, 60 NY2d 620), established that Delia Torres, Elizabeth Roldan, and David Acosta met with Elizabeth Garcia, Jimmy Rivera, and the decedent at South Second Street in Brooklyn on the afternoon of February 9, 1981. Sometime thereafter, they proceeded along Marcy Avenue toward the subway station. The decedent and Roldan were walking ahead of the rest. When they reached South First Street, the defendant Lopez emerged from an automobile approximately six feet away and began firing shots at the group. Acosta, Torres, and some of the others scattered. The decedent pushed Roldan into a nearby doorway and began to grapple with Lopez. The defendant La Mota then came running down the block toward the combatants, brandishing a knife. Upon reaching the scene of the struggle, he stabbed the decedent.

The decedent was subsequently taken to the hospital. Luz Robles, his girlfriend, arrived sometime thereafter. He told her that La Mota had stabbed him during the altercation with Lopez, and requested that she tell Rivera and Acosta to press charges against them. He also stated that he believed he was going to die. The decedent later died as a result of the stab wound.

We conclude that the statements made by the decedent to Roldan at the hospital were properly admitted into evidence as dying declarations (see, People v Nieves, 67 NY2d 125).

The evidence was legally sufficient to sustain each of the charges of which the defendant Lopez was convicted, as well as the defendant La Mota’s conviction of manslaughter in the first degree. The evidence, however, does not support a conclusion that La Mota is criminally liable with respect to either of the remaining counts of which he was convicted. There is no evidence from which the jury could reasonably infer that La Mota possessed the requisite mental culpability for the commission of reckless endangerment in the first degree, or that he solicited, requested, commanded, importuned, or intentionally aided Lopez in the commission of this crime (see, Penal Law § 20.00). The testimony is uncontroverted that his participation in the incident commenced subsequent to Lopez’s act of firing into the group. Furthermore, the evidence did not establish any relevant connection between the defendants so as to support an inference of common criminal intent to use the gun unlawfully against another (see, Penal Law § 265.03). Accordingly, we must reverse La Mota’s convictions of reckless endangerment in the first degree and criminal possession of a weapon in the second degree.

The remainder of the defendants’ claims are unpreserved for our review and, in any event, are without merit. Bracken, J. P., Niehoff, Eiber and Sullivan, JJ., concur.