People v. Letizia

— Order modified, on the law, and as modified, affirmed, in accordance with the following memorandum: The People appeal from the dismissal of an indictment charging the defendant with criminal facilitation in the second degree and as an accessory to felony murder, attempted robbery, criminal possession of a weapon and criminal use of a firearm. Viewing the evidence in a light most favorable to the People (People v Lancaster, 114 AD2d 92, 95), the record before the Grand Jury reveals that defendant, knowing that her husband and two of his friends were planning to rob someone of cocaine, cut her stockings for use as masks and gave gloves to her husband. The next evening the masks and gloves were used in a robbery attempt, and a young woman was shot and killed. Competent evidence was presented constituting prima facie proof that defendant, believing it probable that other persons intended to commit a crime, engaged in conduct which provided a means to commit a crime and which in fact aided the principal actors to commit a felony. Since this evidence constitutes prima facie proof of every element of criminal facilitation in the second degree, or a lesser included offense, the court erred by dismissing the criminal facilitation count (CPL 70.10 [1]; 190.65 [1]; People v Deitsch, 97 AD2d 327, 329). The court’s dismissal of the remaining counts predicated upon defendant’s accessorial conduct was proper. Although she knowingly provided a means for the commission of a robbery, there is no proof that she shared the intent of the principal actors in the sense that she, herself, intended to commit the robbery or related crimes, or that she was to profit therefrom or had any interest in their success or failure (see, Hechtman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law § 20.00, p 44). Under these circumstances, the defendant cannot be criminally liable as an accessory (Penal Law § 20.00; see also, People v Bray, 99 AD2d 470; People v Thomas, 66 AD2d 1001; 31 NY Jur 2d, Criminal Law §§ 177, 178). Accordingly, the order is modified by denying the motion to dismiss the criminal facilitation count of the indictment and the indictment is, to that extent, reinstated. All concur, except Boomer, J., who dissents in part and votes to reverse and reinstate the indictment in the following memorandum.