87 A.D.2d 523 | N.Y. App. Div. | 1982
Judgment of conviction, after trial to a court and jury, of murder, second degree, and criminal possession of a weapon, second degree, rendered November 14, 1979, Supreme Court, Bronx County (Hecht, J.), unanimously reversed, on the law, and the indictment dismissed. The evidence, as presented at the trial, may be simply stated. Two witnesses, who knew defendant, saw him at about 3:00 p.m. in an auto, variously described as either brown or maroon, owned by his father; he was joined therein by the deceased; the witnesses learned about 20 minutes later that the deceased had been shot. A youngster of about nine years — eight at the time of the occurrence — testified that, at a place away from the earlier scene, about three that afternoon, he saw the deceased’s body shoved out of a blue car by a mustached white man, not otherwise identified, who drove off after calling something out to some unknown person referred to as “Charlie,” while pointing to the deceased. The deceased had been shot by one bullet entering the pelvic area. Defendant, a white man with a mustache and long sideburns, was not identified by any witness other than in connection with the first scene. The boy pointed out someone in the courtroom as resembling the man in the car, but he did not resemble defendant. There were no powder burns on the deceased’s clothing indicating the shooting had not been at close range. There was no proof whatever concerning either motive or intent nor, indeed, of whatever the prior relationship, if any, had been between the deceased and defendant. Viewed in its best aspect, the evidence against defendant hangs on a slender thread: defendant and deceased had been seen together in an auto in circumstances which did not unequivocally permit of an inference of enmity or hostility; no. more than half an hour later, the deceased, victim of a gunshot fired at more than close range, was seen being pushed out of another vehicle by a person neither identified nor described as defendant, nor in circumstances