Appellate Brief

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. at 306, 414 N.Y.S.2d at 384.

Id.

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.” 414 N.Y.S.2d at 384.

Id. at 306-07,

Furthermore, the only conduct that the 2

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.” at 307, 414 N.Y.S.2d at 385.

Id.

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).

STATEMENT OF FACTS 3

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). 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). 4

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

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, 5

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 next day (R. at 481).

The man Albini fought died

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, 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).

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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. 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 7

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 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 8

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.” (Consol. 2004).

N.Y. PENAL LAW § 20.0

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 9

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 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

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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 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. 11

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 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 12

shown to exclude other fair inferences.” N.Y.S.2d at 41.

Id. at 43-44, 248

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.

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 13

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 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. subjective element as well.”

There is a

Id. at 412, 276 N.Y.S.2d at 110. 14

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

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.”) 15

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 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 16

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 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 17

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 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 18

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. 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 19

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 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

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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.

Therefore, the jury’s verdict was reached without

sufficient reason and must be set aside.

DATED:

April 4, 2004 Buffalo, New York

Respectfully Submitted, _______________________ LORA E. COMO, ESQ. Attorney for Defendant-Appellant MAILBOX 561

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