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.

In any prosecution for an offense in which the criminal liability of the defendant is based upon the conduct of another person pursuant to section 20.00, it is no defense that:

Notwithstanding the provisions of sections 20.00 and 20.05, a person is not criminally liable for conduct of another person constituting an offense when his own conduct, though causing or aiding the commission of such offense, is of a kind that is necessarily incidental thereto.  If such conduct constitutes a related but separate offense upon the part of the actor, he is liable for that offense only and not for the conduct or offense committed by the other person.

Except as otherwise expressly provided in this chapter, when, pursuant to section 20.00, two or more persons are criminally liable for an offense which is divided into degrees, each person is guilty of such degree as is compatible with his own culpable mental state and with his own accountability for an aggravating fact or circumstance.

A person is criminally liable for conduct constituting an offense which he performs or causes to be performed in the name of or in behalf of a corporation to the same extent as if such conduct were performed in his own name or behalf.

A person is guilty of criminal facilitation in the fourth degree when, believing it probable that he is rendering aid:

A person guilty of criminal facilitation in the third degree, when believing it probable that he is rendering aid to a person under sixteen years of age who intends to engage in conduct that would constitute a felony, he, being over eighteen years of age, engages in conduct which provides such person with means or opportunity for the commission thereof and which in fact aids such person to commit a felony.Criminal facilitation in the third degree is a class E felony.

A person is guilty of criminal facilitation in the second degree when, believing it probable that he is rendering aid to a person who intends to commit a class A felony, he engages in conduct which provides such person with means or opportunity for the commission thereof and which in fact aids such person to commit such class A felony.

Criminal facilitation in the second degree is a class C felony.

A person is guilty of criminal facilitation in the first degree when, believing it probable that he is rendering aid to a person under sixteen years of age who intends to engage in conduct that would constitute a class A felony, he, being over eighteen years of age, engages in conduct which provides such person with means or opportunity for the commission thereof and which in fact aids such person to commit such a class A felony.

Criminal facilitation in the first degree is a class B felony.

It is no defense to a prosecution for criminal facilitation that:

1. The person facilitated was not guilty of the underlying felony owing to criminal irresponsibility or other legal incapacity or exemption, or to unawareness of the criminal nature of the conduct in question or to other factors precluding the mental state required for the commission of such felony;  or

2. The person facilitated has not been prosecuted for or convicted of the underlying felony, or has previously been acquitted thereof;  or

3. The defendant himself is not guilty of the felony which he facilitated because he did not act with the intent or other culpable mental state required for the commission thereof.

A person shall not be convicted of criminal facilitation upon the testimony of a person who has committed the felony charged to have been facilitated unless such testimony be corroborated by such other evidence as tends to connect the defendant with such facilitation.

For purposes of this article, such conduct shall include, but not be limited to, making available, selling, exchanging, giving or disposing of a community gun, which in fact, aids a person to commit a crime.  “Community gun” shall mean a firearm that is actually shared, made available, sold, exchanged, given or disposed of among or between two or more persons, at least one of whom is not authorized pursuant to law to possess such firearm.  “Dispose of” shall have the same meaning as that term is defined in section 265.00 of this chapter.  “Share” and “make available” shall, in the case of a firearm, be construed to include knowingly placing such firearm at a location accessible and known to one or more other persons.

A person is guilty of resisting arrest when he intentionally prevents or attempts to prevent a police officer or peace officer from effecting an authorized arrest of himself or another person.

Resisting arrest is a class A misdemeanor.

Robert J. Ellis, Jr., New York City, for appellant in the first above-entitled action.

Charles J. Hynes, District Attorney of Kings County, Brooklyn (Jane S. Meyers, Roseann B. MacKechnie and Anne C. Feigus of counsel), for respondent in the first above-entitled action.

Florence M. Kerner, Huntington, for appellant in the second above-entitled action.

Charles J. Hynes, District Attorney of Kings County, Brooklyn (Jane S. Meyers, Roseann B. MacKechnie and Anne C. Feigus of counsel), for respondent in the second above-entitled action.

Harold V. Ferguson, Jr., New York City, and Daniel L. Greenberg for appellant in the third above-entitled action.

Charles J. Hynes, District Attorney of Kings County, Brooklyn (Jane S. Meyers and Roseann B. MacKechnie of counsel), for respondent in the third above-entitled action.

Judges TITONE, BELLACOSA, SMITH, LEVINE, CIPARICK and WESLEY concur.

286*286Chief Judge KAYE.

Shortly before noon on December 17, 1992, Shamel Burroughs 287*287 engaged in a gun battle with Jermaine Russell and Khary Bekka on Centre Mall of the Red Hook Housing Project in Brooklyn. During the course of the battle, Patrick Daly, a public school principal looking for a child who had left school, was fatally wounded by a single stray nine millimeter bullet that struck him in the chest. Burroughs, Bekka and Russell — defendants on this appeal — were all charged with second degree murder (Penal Law § 125.25 [1], [2]).

Two separate juries, one for Burroughs and another for Russell and Bekka, were impanelled contemporaneously and heard the evidence presented at trial. Although ballistics tests were inconclusive in determining which defendant actually fired the bullet that killed Daly, the theory of the prosecution was that each of them acted with the mental culpability required for commission of the crime, and that each "intentionally aided" the defendant who fired the fatal shot (Penal Law § 20.00). Both juries convicted defendants of second degree, depraved indifference murder (Penal Law § 125.25 [2]).^[*]

On appeal, each defendant challenges the sufficiency of the evidence. Because the evidence, viewed in the light most favorable to the prosecution, could have led a rational trier of fact to find, beyond a reasonable doubt, that each defendant was guilty of depraved indifference murder as charged, we affirm the order of the Appellate Division sustaining all three convictions.

A depraved indifference murder conviction requires proof that defendant, under circumstances evincing a depraved indifference to human life, recklessly engaged in conduct creating a grave risk of death to another person, and thereby caused the death of another person (Penal Law § 125.25 [2]). Reckless conduct requires awareness and conscious disregard of a substantial and unjustifiable risk that such result will occur or that such circumstance exists (Penal Law § 15.05 [3]). "The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation" (id.). To constitute "depraved indifference," conduct must be "`so wanton, so deficient in a moral sense of concern, so devoid of regard of the life or lives of others, and so blameworthy as to warrant the same criminal liability as that which the law 288*288 imposes upon a person who intentionally causes the death of another'" (People v Fenner, 61 N.Y.2d 971, 973; see also, People v Register, 60 N.Y.2d 270, cert denied 466 US 953).

Although defendants underscore that only one bullet killed Patrick Daly and it is uncertain which of them fired that bullet, the prosecution was not required to prove which defendant fired the fatal shot when the evidence was sufficient to establish that each defendant acted with the mental culpability required for the commission of depraved indifference murder, and each defendant "intentionally aided" the defendant who fired the fatal shot (Penal Law § 20.00; see also, People v Brathwaite, 63 N.Y.2d 839, 841-842). Defendants urge, however, that the evidence adduced at trial did not support a finding that they — as adversaries in a deadly gun battle — shared the "community of purpose" necessary for accomplice liability (see, People v Allah, 71 N.Y.2d 830). We disagree. The fact that defendants set out to injure or kill one another does not rationally preclude a finding that they intentionally aided each other to engage in the mutual combat that caused Daly's death.

People v Abbott (84 AD2d 11) provides an apt illustration. That case involved two defendants — Abbott and Moon — who were engaged in a "drag race" on a residential street when Abbott lost control and smashed into another automobile, killing the driver and two passengers. Both defendants were convicted of criminally negligent homicide, but Moon asserted that he was not responsible for Abbott's actions and that his conviction should be set aside. Rejecting this argument, the court found that, although Moon did not strike the victim's car and was Abbott's adversary in a competitive race, he intentionally participated with Abbott in an inherently dangerous and unlawful activity and therefore shared Abbott's culpability. Moon's "conduct made the race possible" in the first place, as there would not have been a race had Moon not "accepted Abbott's challenge" (id. at 15; see also, People v Fabian, 154 Misc 2d 957, 962 [although defendants were trying to harm each other, at the same time they acted in concert to create an explosive condition that resulted inevitably in the victims' death and injuries]; Alston v State, 339 Md 306, 320, 662 A2d 247, 254 [there was sufficient evidence to support a jury finding that rival groups tacitly agreed, pursuant to an "unwritten code of macho honor," that there would be mutual combat and that each group aided, abetted and encouraged its adversary to engage in urban warfare]).

In the present case, the jurors were instructed: "If you find that the People have proven beyond a reasonable doubt that 289*289 [defendants] took up each other's challenge, shared in the venture and unjustifiably, voluntarily and jointly created a zone of danger, then each is responsible for his own acts and the acts of the others * * * [and] it makes no difference whether it was a bullet from Mr. Bekka's gun, Mr. Russell's gun or Mr. Burrough's gun that penetrated Mr. Daly and caused his death" (emphasis added).

The trial evidence was sufficient to support each jury's findings in accordance with this charge. Although Burroughs was shooting at Russell and Bekka, and Russell and Bekka were shooting at Burroughs, there was adequate proof to justify the finding that the three defendants tacitly agreed to engage in the gun battle that placed the life of any innocent bystander at grave risk and ultimately killed Daly. Indeed, unlike an unanticipated ambush or spontaneous attack that might have taken defendants by surprise, the gunfight in this case only began after defendants acknowledged and accepted each others' challenge to engage in a deadly battle on a public concourse.

As defendants approached one another on Centre Mall, a grassy open area that serves as a thoroughfare for the 7,000 residents of the 28-building housing complex, it was evident that an encounter between them would be violent and would endanger others. There was trial evidence that when Burroughs first saw Bekka and Russell walking toward him, he immediately recognized the danger, instructing the two female friends accompanying him, one of them pregnant, to "run" or "go." They too plainly sensed the danger because, without hesitation, they turned and ran.

Despite the palpable threat, Burroughs, armed with a nine millimeter Glock, did not flee with his friends. Rather, he continued toward Russell and Bekka, tacitly accepting their invitation and issuing one of his own. In turn, Russell and Bekka, also armed with automatic weapons, continued walking toward Burroughs, challenging him and accepting his challenge. As they drew nearer, defendants each began firing their high-powered guns, capable of shooting bullets at an average rate of 1,100 feet per second, across the pedestrian thoroughfare. The dozen or more people in the area, as well as those with windows overlooking the Mall, were put at grave risk as defendants unleashed a hail of bullets. Witnesses testified that the battle sounded "like a war" and that anywhere from nine to 20 shots were fired.

290*290Although Centre Mall is surrounded by buildings affording refuge, defendants chose instead to run through the area aggressively pursuing one another. Indeed, even after exchanging an initial volley of shots, they continued to wage their private war, issuing taunts and ducking back and forth behind buildings and trees, seeking tactical advantage. As a result of defendants' deadly gun battle, Patrick Daly was shot in the chest and killed almost instantly.

At trial, all three defendants sought to exonerate themselves by arguing self-defense — each claiming that their opponent shot first and they were justified in firing back. Under New York law, however, a person who reasonably believes that another is about to use deadly physical force is not free to reciprocate with "deadly physical force if he knows that he can with complete safety as to himself and others avoid the necessity of so doing by retreating" (Penal Law § 35.15 [2] [a]; People v Goetz, 68 N.Y.2d 96, 106). Here, there was evidence that defendants did not avail themselves of opportunities for safe retreat, choosing instead to use deadly force against each other. As such, there was adequate support for each jury's rejection of defendants' justification defense.

The evidence adduced at trial was also sufficient for the jury to determine that all three defendants acted with the mental culpability required for depraved indifference murder, and that they intentionally aided and encouraged each other to create the lethal crossfire that caused the death of Patrick Daly.

To the extent defendants' remaining arguments are preserved, we conclude that they are without merit.

Accordingly, in each case the order of the Appellate Division should be affirmed.

In each case: Order affirmed.

[*] The charge of second degree murder under a transferred intent theory, pursuant to Penal Law § 125.25 (1), was dismissed by the trial court.

25 N.Y.3d 1107, 35 N.E.3d 476, 14 N.Y.S.3d 308, 2015 N.Y. Slip Op. 04874

The People of the State of New York, Respondent

v

Hakim B. Scott, Appellant

Court of Appeals of New York

Argued May 5, 2015

Decided June 11, 2015

OPINION OF THE COURT

The order of the Appellate Division should be affirmed.

In the early morning hours of December 7, 2008, following a night of heavy drinking, José Sucuzhanay and his brother Romel Sucuzhanay were walking home in their **2 Brooklyn neighborhood while supportively holding one another. The brothers crossed in front of an SUV which was stopped at a red light. In the SUV were Keith Phoenix in the driver’s seat, Demetrius Nathaniel in the passenger seat, and defendant Hakim Scott in the backseat. As the brothers passed in front of the SUV, Phoenix yelled homophobic slurs from the car window. In response, one of the brothers either lifted his foot to kick the SUV or actually kicked it. Defendant exited the vehicle, raised a glass beer bottle and smashed it over José’s head, causing José to fall to the ground. Defendant thereafter chased Romel down the block, carrying the remains of the broken bottle. Phoenix, at some point, exited the SUV, removed an aluminum baseball bat from the car and proceeded to beat José with the bat. Defendant, upon returning to the scene, fled in the SUV along with Phoenix and Nathaniel. José was left unconscious and died from his injuries the next day.

At trial, the People asserted two alternative theories of liability: (1) that defendant was acting in concert with Phoenix, and (2) that defendant alone caused José’s death. Following trial, defendant was convicted of manslaughter in the first degree, for the death of José, and attempted assault in the first degree, for his actions toward Romel. Defendant was sentenced to consecutive prison terms of 25 years on the manslaughter conviction and 12 years for attempted assault. The Appellate Division reduced the term of imprisonment for the attempted assault conviction from 12 years to four years, and otherwise affirmed the convictions, holding that the evidence was legally sufficient to sustain the convictions (see People v Scott, 106 AD3d 1030 [2d Dept 2013]). Defendant argues that his conviction for first degree manslaughter should be overturned because the record lacks legally sufficient evidence to support the conclusion that he was acting in concert with Phoenix to cause the death of José.

Penal Law § 20.00 provides that when a principal commits a crime, the principal’s accomplice may be held liable where the *1110 accomplice “acting with the mental culpability required for the commission [of the crime] . . . solicits, requests, commands, importunes, or intentionally aids [the principal] to engage in [the commission of the crime].” In People v La Belle (18 NY2d 405 [1966]), we held that to be liable under an acting in concert theory, the accomplice and principal must share a “community of purpose” (id. at 412).

(^[1]) This was a close case. The evidence presented at trial resulted in conflicting testimony about when exactly Phoenix exited the SUV. Nathaniel testified that defendant got out of the car first, then, once defendant ran away chasing Romel, Phoenix exited the vehicle. Romel, however, testified that Phoenix exited at the same time as defendant and, that after defendant hit José with the bottle, Romel could see Phoenix coming toward José with the bat. Thus, under Romel’s version of events, defendant and Phoenix were out of the car at the same time, both acting in a manner intending to cause harm to José. Additionally, another eyewitness **3 testified that he observed Phoenix swing the bat at one of the brothers while defendant was present. Viewing the evidence, as we must, in the light most favorable to the People (see People v Delamota, 18 NY3d 107, 113 [2011]; People v Conway, 6 NY3d 869, 872 [2006]), a reasonable jury could infer that a community of purpose existed between defendant and Phoenix. Therefore, legally sufficient evidence exists to support the conclusion that defendant and Phoenix were acting in concert and caused the death of José.

(^[2]) Finally, we reject defendant’s argument that the trial court committed a mode of proceedings error when it gave the jury a supplemental instruction in defendant’s absence, regarding the dates alleged in the indictment.

During jury instructions, as the court was giving the jury the relevant dates for the charges against defendant as stated in the indictment, December 7th and December 8th, the prosecutor interrupted the judge, attempting to correct her by stating that the relevant dates were December 6th and December 7th. The judge then charged the jury using the dates given by the prosecutor. The following day, the court—in the absence of the jury, defendant, and all counsel—stated, on the record to the court reporter, that she had charged the jury on the wrong dates of the alleged crimes, and that the correct dates were December 7th and 8th. The judge stated that she had spoken with the parties who agreed that the jury could be informed of this mistake outside of their presence. Thereafter, in the *1111 absence of the attorneys and defendant, the judge informed the jury that she had given them the wrong dates and told them the correct dates of the alleged crimes, noting that both parties agreed that she could make the correction in their absence. Later in the day, when defendant and his counsel were present, the court referenced its earlier supplemental instruction and asked defense counsel if the supplemental instruction was satisfactory, to which defense counsel responded that he had no objection.

Although defendant has a fundamental right to be present during “all material stages of a trial” (People v Mehmedi, 69 NY2d 759, 760 [1987]), the court’s supplemental instruction to the jury—simply clarifying the dates of the crimes in the jury charge, which were the same dates set forth in the indictment—did not require defendant’s presence. Because the court’s instruction was a technical conformance with the indictment that did not require defendant’s presence, no mode of proceedings error occurred.

Chief Judge Lippman and Judges Read, Pigott, Rivera, Abdus-Salaam, Stein and Fahey concur.

Order affirmed, in a memorandum.