Defendant Austin Babb was charged with shooting and killing Demetreus Jones, and with shooting and wounding three other people, at a party that took place in the Bronx in 2010. He was tried by jury for Murder and related charges before this Court in October and November of 2014. At the close of the People's case, and once again at the conclusion of all the evidence, defendant Babb moved for a trial order of dismissal. The Court denied that motion as to all charges, except those relating to the shooting of Daquan Fletcher and of Brandi Garcia-Suila. The Court reserved decision solely as to those charges.

The jury found defendant guilty of Murder with respect to victim Demetreus Jones and guilty of Assault in the First Degree with respect to victim Ariel Hall. The jury acquitted defendant of Attempted Murder with respect to Daquan Fletcher and Brandi Garcia-Suila, but found defendant guilty of Assault in the First Degree with respect to each of those same two victims. Accordingly, the Court is now required to decide defendant's still pending motion to dismiss those two counts of Assault in the First Degree.

That motion, originally made in the midst of trial for a trial order of dismissal, stands separate and apart from the post-trial CPL §330.30(1) motion that defendant has recently submitted. However, in his post-trial §330.30(1) motion, defendant (among many other arguments) in substance reasserts his CPL§290.10 motion for a trial order of dismissal, this time as a post-trial §330.30(1) motion - - again alleging that the evidence was legally insufficient to support defendant's Assault convictions with respect to Mr. Fletcher and Ms. Garcia-Suila.

For the reasons stated below, this Decision and Order denies both defendant's §290.10 motion for a trial order of dismissal and the substantially identical portion of his post-trial [*2]§330.30(1) motion in which defendant once again asserts that the trial evidence was legally insufficient.

In deciding a motion for a trial order of dismissal made pursuant to CPL §290.10, the Court must confine its review solely to the legal sufficiency of the evidence as defined in CPL §70.10; and in that process the Court must view the evidence in the light most favorable to the People. People v. Singh, 191 AD2d 731 (2d Dept. 1993). A trial order of dismissal may be granted only where the trial evidence - - if accepted as true, and without consideration as to its quality or weight - - would not establish every element of the offense charged. People v. Davis, 208 AD2d 1062 (3d Dept. 1994). Even where the evidence against the defendant is circumstantial in nature, the standard for reviewing the sufficiency of the evidence is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Ficarota, 91 NY2d 993 (1997); People v. Contes, 60 NY2d 620, 621 (1983), quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979).

This case involves a shooting spree that took place at a teenagers' dance party in August of 2010. One young man (Demetreus Jones) was killed inside the sixth floor apartment where the party was held. A teenage girl (Ariel Hall), who was standing close to Mr. Jones, was shot and wounded. Almost all the partygoers fled rapidly. Two of them - - Daquan Fletcher and Brandi Garcia-Suila - - were then shot and wounded, apparently while running down the interior stairs of the apartment building. Neither Mr. Fletcher nor Ms. Garcia-Suila saw the person who was shooting at them; but Ms. Garcia-Suila did hear the voice of a man in the hallway outside the apartment where the party had been held shouting "I don't give a f*** about anybody," or words to that effect, before someone began shooting at the partygoers who were running down the stairs. (Tr. 107.)^[FN1]

The People's chief witness was a young man named Corey Collins. Collins was a close friend of the murder victim Demetreus Jones. (Tr. 358, 393.) He and the defendant Austin Babb were strangers. (Tr. 388.) Collins attended the party. A number of weeks earlier, Collins had watched while defendant Austin Babb and Demetreus Jones had engaged in a "stare-down" and cursing match in the street. That stare-down had lasted for several minutes and took place in the same neighborhood as the subsequent party. (Tr. 360-61, 386-400, 526-27.)

On the night of the party, Collins saw Babb (in a red, or red plaid, shirt) and a young man in a grey tee shirt parking two bicycles close together in the mail room of the building where the party took place. (Tr. 357, 379-80, 553-69, 600-619, 662-63.) (At trial, during defense counsel's cross-examination, Mr. Collins tentatively identified a photograph of Quiah Wade as a photo of the individual in the grey tee shirt.) (Tr. 663-65, 673-74, 677-78 and 679.)

Later that night, Collins was standing with other partygoers well inside the apartment, resting during a break in the music and dancing. (Tr. 546-47, 622, 625-27.) He saw the [*3]defendant Babb standing just inside the apartment, near the front door. (Tr. 628.) Collins stated that it appeared that defendant Babb waited until Demetreus Jones' back was turned, and then Babb pulled out a gun and opened fire. (Tr. 629, 636, 639-41, 652.) Defendant Babb fired his gun several times - - killing Jones, wounding Ariel Hall, and producing a general panic and stampede out of the apartment. (Tr. 628-31, 637-52, 657-61.) Collins later picked defendant out as the shooter, first from a photo array (of twelve people) (Tr. 918-20) and then from a line-up (of six people). (Tr. 362-366, and 677-79.)

Daquan Fletcher, Brandi Garcia-Suila, and many other people who had been attending the party all ran down the stairs of the building, trying to escape. (Tr. 546-47, 622, 625-27.) (As noted above) Ms. Garcia-Suila heard a voice from the hallway above, outside the apartment where the party had taken place, shout "I don't give a f*** about anybody"; then someone started shooting down the stairs. (Tr. 107-8.) Fletcher was hit from behind by gunfire as he ran; he testified that the shot in essence knocked him down a flight of steps. Ms. Garcia felt pain in her elbow as she ran down the stairs, but did not fully realize that she had been shot till she reached the street below. Neither Fletcher nor Garcia-Suila (nor any other witness) saw who it was that shot at the partygoers as they ran down the stairs. (Tr. 95-96, 107-08, 112-13, 289-90, 546-47, 622, 625-27.)

Demetreus Jones' mother lived several floors below the party. Both Demetreus and several of his sisters attended the party. At trial, Mrs. Jones testified that she heard shots and a commotion. She looked out her door and saw a man in a red (or red and white) plaid, or striped, or checkered shirt holding an object in his hands, running down the stairs. She retreated into her apartment and then looked out her window. She saw many of the partygoers flooding out of the building and onto the street. She also saw a person she believed to be the same man in the red shirt now trying to ride away from the building on a bicycle. The man abandoned the bicycle on the street in front of the building and ran away on foot. Police found fingerprints belonging to defendant Babb, to Quiah Wade, and to a third unidentified person on that "getaway" bicycle; they also observed that the bicycle's chain had jammed and come off the sprockets. (Tr. 210-11, 217-20, 226, 866.)

On these facts, there was no doubt that legally sufficient evidence was presented to support the charge of Murder with respect to the victim Demetreus Jones and to support the charge of Assault with respect to the victim Ariel Hall, as well as to support the weapons charges in this case.^[FN2] Corey Collins' eyewitness testimony - - if believed - - established that it was defendant who cruelly and deliberately shot both Jones and Hall at close range with a gun.

Admittedly, Corey Collins had ingested marijuana and liquor on the evening of the shooting, and did feel their effects. Moreover, Collins has in the years since the night of [*4]Demetreus Jones' murder been convicted for two felony drug offenses. Nevertheless, the jury was entitled to credit Collins' testimony, as they plainly did.

They had sufficient reason to do so. Despite a grueling cross-examination that lasted more than a week, Collins consistently came across as an honest, patient, and accurate witness. Furthermore, Collins' identification of defendant Babb as the murderer was partially confirmed by the presence of Babb's fingerprints on the getaway bicycle that was abandoned in front of the building.

Notably, the witness Colllins and the defendant Babb were strangers, and Collins thus had no motive to falsely accuse Babb of murder (or any other crime). Collins also appeared to be remarkably good at remembering and recognizing faces. He was able to pick defendant out of both a well-constructed photo array and a well-constructed line-up. Even more remarkably, at trial - - a full four years after the fact - - Collins was able to identify Quiah Wade as the man in the grey tee shirt who had accompanied defendant Babb when Babb and Wade parked their bicycles side by side in the mail room on the night of the murders; that identification was largely confirmed by the presence of Wade's fingerprints (along with Babb's) on the abandoned getaway bike.

The real difficulty in this case concerns the two victims - - Daquan Fletcher and Brandi Garcia-Suila - - who were shot while fleeing from the party by running down the stairs. They did not see who was shooting at them; and no other witness claimed to have seen the man who was shooting at the people who were running down the stairs. Mrs. Jones did see a man in a red shirt holding an unidentified object first running down the stairs and, moments later, jumping off the getaway bike on the street outside. But at trial Mrs. Jones said that she could not identify that man, and that she could not even be sure that the man she had seen had been holding a weapon.

In short, there was no eyewitness who directly identified defendant Babb as the man who shot Mr. Fletcher and Ms. Garcia-Suila on the stairs; indeed, no eyewitness even claimed to have seen those shots being fired.^[FN3]

It was in all likelihood because of the absence of such testimony that the jury wisely acquitted defendant Babb on the charge of Attempted Murder for shooting Fletcher and Garcia-[*5]Suila. In the absence of a description of the shooter firing at these victims, there was reasonable doubt as to whether the defendant truly intended to kill the fleeing partygoers.

The question that remains is this: In the absence of eyewitness testimony directly describing the shooting in the stairs, was the evidence that was presented legally sufficient to prove that defendant Austin Babb was the man who shot Fletcher and Garcia-Suila?

The question is a relatively close one, and that is why (as noted above) the Court reserved decision on the motion to dismiss the charges of Assault as to Fletcher and Garcia-Suila both at the close of the People's case, and again at the close of all the evidence.

The Court now finds that the evidence was - - just barely - - sufficient. Clearly, the jury inferred that Austin Babb, the man who (according to Carey Collins) opened fire inside the party - - killing Demetreus Jones and wounding Ariel Hall - - was the same man who, just moments later, shot and wounded Fletcher and Garcia-Suila as they ran down the stairs.

That inference was logical. It is, admittedly, theoretically possible that there might have been a second shooter present at the party that night. In particular, (although the defense did not raise this argument at trial) the Court was troubled by the possibility that whoever fired his gun down the stairs might have been trying to retaliate for the murder of Demetreus Jones by shooting at the fleeing murderer.

But the jury was nevertheless entitled to reason, as a matter of common sense and experience, that the probability that there were somehow two armed gunmen capable of such indiscriminate and vicious brutality present at the very same time at the very same teenagers' dance party was exceedingly low. Rather, in all likelihood, the same man who opened fire inside the apartment and killed Demetreus Jones also shot the partygoers who, moments later, ran away down the stairs.

That plainly sensible line of reasoning was supported and reinforced by Mrs. Jones' testimony and by the way her testimony fit neatly together with the other key evidence in the case. True, no single witness observed defendant shoot all four victims and then flee the scene of the crime. Nevertheless, when one pieces together the testimony of all the important witnesses, it becomes clear that is indeed what happened.

More specifically, Mrs. Jones testified that she saw a man in a red (and possibly red plaid) shirt, holding an unidentified object, first running down the stairs and then (once outside) abandoning the getaway bicycle and fleeing the crime scene on foot. Notably, Corey Collins testified that the murderer Babb was wearing a red (and possibly red plaid) shirt, and the police found Babb's fingerprints on the very same abandoned getaway bicycle.

Given this interlocking circumstantial evidence, the jury was entitled to connect the dots; that is to say, it was proper for the jury to infer that it was the same man in the red plaid shirt - - namely, the defendant Austin Babb - - who: a) first, killed Jones and shot Hall inside the apartment where the party was held; b) next, shot Fletcher and Garcia-Suila as they ran down the stairs; c) then ran down the stairs himself, where he was initially observed by Mrs. Jones; and d) finally, attempted to flee the area by bicycle, and then ran away on foot (while Mrs. Jones watched him from her window).

Thus, viewing all the evidence together in the light most favorable to the People, a rational trier of fact could conclude beyond a reasonable doubt - - even in the absence of direct eyewitness testimony concerning the shootings on the stairs - - that defendant Austin Babb was [*6]the man who shot Daquan Fletcher and Brandi Garcia-Suila as they ran down the stairs and away from the party. See People v. Rivera, 112 AD3d 1288 (4th Dept. 2013) (where circumstantial evidence proves identity of defendant, absence of eyewitness to actual shooting does not render evidence legally insufficient); People v. Moore, 78 AD3d 1658 (4th Dept.), lv. den. 17 NY3d 798 (2010) (same); People v. Gorham, 72 AD3d 1108 (2d Dept. 2010) (same).

Accordingly, defendant's motion for a trial order of dismissal is hereby denied. Similarly, his post-trial CPL §330.30(1) motion to set aside his conviction as based on insufficient evidence is also hereby denied.

This Opinion constitutes the Decision and Order of the Court.

Hon. Ethan Greenberg, A.J.S.C.