Accomplice Liability for Weapon Possession and Assault Without Proof of Actual Possession: Commentary on People v. Butts (2025)

I. Introduction

The Appellate Division, Third Department’s decision in People v. Butts, 2025 NY Slip Op 07041 (Dec. 18, 2025), is a detailed and influential application of New York’s law on:

• Accomplice (accessorial) liability under Penal Law § 20.00,
• Criminal possession of a weapon in the second degree (Penal Law § 265.03[3]),
• Assault in the second degree (Penal Law § 120.05[2]), and
• Corroboration of accomplice testimony under CPL 60.22.

The case arises from a late-night shooting in Binghamton involving two vehicles: a sedan driven by Keshawn Revis and an SUV (a Chevy Equinox) containing defendant Jalil A. Butts (known as “J‑Dot”), Antonio Jones, and others. The victim was defendant’s own cousin, who was shot in the arm when the SUV pulled alongside Revis’s car. The People’s theory was that defendant and Jones acted in concert to pursue and shoot at the sedan, intending to shoot someone other than the cousin, who was injured as a result.

Defendant was tried jointly with Jones. Both were acquitted of attempted murder in the second degree but convicted of:

• Criminal possession of a weapon in the second degree (Penal Law § 265.03[3]), and
• Assault in the second degree (Penal Law § 120.05[2]).

On appeal, Butts raised several issues, principally:

1. Whether there was legally sufficient evidence, and whether the verdict was against the weight of the evidence, to convict him under an accomplice theory where the shooter and the actual possessor of the weapon could not be definitively identified;
2. Whether accomplice testimony (from “witness 1”) was adequately corroborated as required by CPL 60.22;
3. Whether the County Court erred in refusing a missing witness charge regarding the driver, Revis;
4. Whether a Wade hearing was required regarding identification;
5. Whether the court erred in refusing a circumstantial evidence charge; and
6. Whether the sentence was excessive.

The Third Department affirmed, offering a careful synthesis of existing precedents and reinforcing several key principles. Its most important contribution is clarifying that a defendant may be convicted of both weapon possession and assault as an accomplice—even without direct proof that he physically possessed or fired the weapon—when the evidence demonstrates knowledge of a co-defendant’s possession and a shared “community of purpose” to use that weapon to inflict injury.

II. Summary of the Opinion

The court, per Justice Lynch, held:

• Legal sufficiency and weight of the evidence: The evidence was sufficient, and the verdict was not against the weight of the evidence, to convict defendant as an accomplice on both the weapon-possession and assault counts, even though there was no direct proof that he fired the weapon or physically possessed it.
• Accomplice liability for weapon possession: Applying Penal Law § 20.00 and prior case law (including People v. James and Matter of Tatiana N.), the court held that accessorial liability for weapon possession does not require the accomplice to physically possess or control the weapon. It is enough that the defendant:
  • knew a co-defendant possessed the weapon, and
  • shared the mental state required for the offense and intentionally aided in the conduct, demonstrating a “community of purpose.”
• Corroboration of accomplice testimony (CPL 60.22): Although “witness 1” was an accomplice as a matter of law, her testimony was adequately corroborated by:
  • the testimony of “witness 2,” and
  • surveillance video showing the SUV following and pulling alongside the victim’s vehicle.
  The corroboration satisfied the statutory requirement that evidence “tend[] to connect the defendant with the commission of the offense.”
  • Assault in the second degree: Even assuming defendant was not the shooter, his conduct—anger after an altercation, repeated requests for the gun, participation in directing the SUV to follow and pull alongside the sedan, and urging silence afterward—showed that he shared the intent to cause physical injury by means of a deadly weapon and intentionally aided the shooter.
  • Missing witness charge (Revis): The County Court did not abuse its discretion in declining to give a missing witness charge regarding Revis. The defense did not establish that Revis would be expected to give testimony favorable to the prosecution; if anything, his expected testimony (close relationship with defendant and inability to identify the shooter) would be favorable to defendant.
  • Wade hearing: No Wade hearing was required as to witness 1’s photo-array identification of defendant because she was already personally familiar with him—seeing him “probably every day” for years—minimizing any risk of suggestive misidentification.
  • Circumstantial evidence charge: A circumstantial evidence charge was not required because the People’s case contained both circumstantial and direct evidence (including direct testimony about conversations and conduct). The claim was unpreserved in any event.
  • Ineffective assistance of counsel: Counsel was not ineffective for failing to request a circumstantial evidence charge, as any such request had “little or no chance of success.”
  • Prosecutorial misconduct: Claims attacking parts of the prosecutor’s summation were unpreserved because defendant failed to object.
  • Sentence: The concurrent sentences (10 years plus 5 years PRS on the weapon count and 5 years plus 3 years PRS on the assault) were not unduly harsh or severe, even considering defendant’s lack of prior criminal history.

  The judgment of conviction was therefore affirmed.

  III. Detailed Analysis

  A. Factual Matrix and the Acting-in-Concert Theory

  The People prosecuted on an “acting in concert” theory, explicitly declining to identify either Butts or Jones as the principal shooter. Instead, they argued that both shared responsibility for the shooting under Penal Law § 20.00.

  Key evidence included:

  • The victim’s account:
    • She attended defendant’s performance at “The Cave” in Binghamton.
    • After the club closed, Revis picked her up in a sedan and later remarked that a vehicle was following them.
    • A Chevy Equinox SUV followed and parked behind Revis’s sedan when he pulled over on Chenango Street.
    • As she reached for the door handle to exit the sedan, she was shot in the left arm.
    • She did not see who was in the SUV or hear any words before the shot.
    • Physical evidence: a bullet fragment in her jacket sleeve and a bullet hole in the driver’s door.
  • Surveillance video:
    • Showed a sedan driving on Chenango Street with an SUV closely following.
    • The sedan pulls to the curb; SUV parks behind it.
    • After ~30 seconds, the SUV pulls alongside the sedan’s driver’s door, pauses briefly, and quickly drives off.
    • As the SUV leaves, an individual falls out of the passenger side of the sedan—consistent with the victim being shot and falling from the car.
  • Identification of the SUV and witness 1:
    • Police traced the SUV to a registrant in Bainbridge.
    • The registrant’s daughter (witness 1) had the vehicle that night and implicated defendant and Jones.
  • Witness 1’s testimony:
    • She was with defendant and Jones earlier at their apartment.
    • Jones had expressed worry about encountering people who “didn’t like him” at the venue.
    • She drove Jones and witness 2 to The Cave; defendant traveled separately.
    • When she dropped Jones off, he handed her a small silver revolver and told her to hold it until after the event. She placed it in the console and fell asleep.
    • Later, after the show, Jones and a third person (witness 3) returned to the SUV. She gave Jones the gun back.
    • They then picked up defendant, who got in the rear passenger seat, agit­ated and upset, reporting he had been punched in the face.
    • Defendant repeatedly (5–6 times) asked Jones for the gun; Jones did not want to give it to him.
    • A Ford Fusion passed by, its occupants antagonizing defendant. Someone in the back seat directed her to follow the Ford; she complied briefly, then stopped following.
    • Then, defendant and Jones spotted another car they wanted her to follow (ultimately Revis’s sedan). She followed onto Chenango Street.
    • When the sedan pulled over, “they” (defendant and Jones) told her to park behind it, and then either defendant or Jones told her to pull up next to it.
    • She heard someone—she believed defendant—say something to the occupants of the sedan, followed by gunshots.
    • Either defendant or Jones told her to drive away; she heard a girl scream as she did.
    • Later, when she drove Jones to Connecticut, he remarked that defendant’s cousin had been shot.
  • Witness 2’s testimony:
    • Present with defendant and Jones before the performance; confirmed discussion about bringing a gun to the venue.
    • After the show, Jones and witness 3 got into the SUV; they then picked up defendant, who was angry.
    • Defendant and Jones were “mad” and “wanted to find people.”
    • Someone in the back seat gave driving directions to follow a car; witness 2 recalled pulling up alongside one of the cars being followed.
    • The rear passenger window (where defendant was seated) rolled down; someone asked, “Do you know what this is about?”
    • Immediately afterward, a gunshot was fired from behind her.
    • After the shooting, defendant asked the group not to say anything.
  • Weapon-related evidence:
    • No firearm or shell casings were recovered.
    • Bullet fragments were too deformed to identify the firearm type.
    • The absence of shell casings was consistent with use of a revolver.
    • A YouTube video showed Jones rapping with a revolver; witness 1 said the gun she had held looked like that weapon.

  Defendant’s core trial theory—reiterated on appeal—was that witness 3 could have been the shooter and that there was no competent evidence that defendant possessed the weapon or had the required mens rea for assault. The jury rejected that theory and convicted both defendant and Jones of the weapon and assault counts.

  B. Legal Framework: Elements and Standards of Review

  1. Elements of the Substantive Offenses

  The court recited the basic statutory elements:

  • Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03[3]):

    “A person is guilty of criminal possession of a weapon in the second degree when … such person possesses any loaded firearm” outside of his or her home or place of business.

    Possession can be:
    • Actual – physical custody of the firearm; or
    • Constructive – dominion or control over the weapon, either through control over:
      • the area where the weapon is located (People v. Bryant, 200 AD3d 1483 [3d Dept 2021]), or
      • the person from whom the weapon is seized (People v. Manini, 79 NY2d 561 [1992]).
  • Assault in the Second Degree (Penal Law § 120.05[2]):

    “A person is guilty of assault in the second degree when … [w]ith intent to cause physical injury to another person, he [or she] causes such injury to such other person or to a third person by means of a deadly weapon or a dangerous instrument.”

  2. Accomplice (Accessorial) Liability

  Penal Law § 20.00 provides that a person is criminally liable for the conduct of another when:

  • acting with the mental culpability required for the commission of the offense,
  • he or she solicits, requests, commands, importunes, or intentionally aids the other person to engage in such conduct.

  The court emphasizes, citing People v. Rivera, 212 AD3d 942 (3d Dept 2023), and People v. Williams, 179 AD3d 1502 (4th Dept 2020), that:

  “There is no legal distinction between criminal liability as a principal or as an accessory to a crime.”

  This doctrinal point is central: once accessorial liability is established, the defendant is treated as though he committed the offense himself.

  3. Standards of Review: Legal Sufficiency and Weight of the Evidence

  The court applied two familiar but distinct standards:

  • Legal sufficiency – viewing the evidence in the light most favorable to the People, could a rational jury find each element of the crime proven beyond a reasonable doubt? This is a minimal baseline; the court does not weigh credibility at this stage.
  • Weight of the evidence – the court views the record in a neutral light, evaluates the relative strength of the conflicting evidence and inferences, and determines whether the jury’s verdict was against the weight of the evidence (People v. Sanchez, 32 NY3d 1021 [2018]). This is a broader review that allows some reweighing of evidence, but still accords deference to the jury’s ability to see and hear witnesses.

  The Third Department applied both standards and sustained the verdict on each.

  C. Constructive Possession and Accessorial Liability for Weapon Possession

  The most significant doctrinal reinforcement in Butts lies in the way the court merges constructive possession and accessorial liability doctrines to affirm a weapon-possession conviction where:

  • the physical weapon is never recovered,
  • no witness actually sees the defendant holding the weapon at the relevant time, and
  • it is unclear which of two co-defendants (if either) pulled the trigger.

  1. Constructive Possession: Bryant and Manini

  The court quotes and relies on:

  • People v. Bryant, 200 AD3d 1483, 1486 (3d Dept 2021):

    Constructive possession requires proof that the defendant exercised dominion or control over the property by a sufficient level of control over the area in which the weapon is found.

  • People v. Manini, 79 NY2d 561, 573 (1992):

    Constructive possession may also be established by dominion or control over the person from whom the weapon is seized.

  Although these cases concern the substantive concept of constructive possession, the court in Butts ultimately does not rest the conviction on the theory that defendant constructively possessed the gun directly. Instead, it focuses on accomplice liability for weapon possession.

  2. Accessorial Liability for Weapon Possession: James and Matter of Tatiana N.

  The court quotes People v. James, 176 AD3d 1492 (3d Dept 2019), which in turn relied on Matter of Tatiana N., 73 AD3d 186 (1st Dept 2010), for the critical rule:

  “Accessorial liability does not require that [an accomplice] either possess or have control over the weapon, or that he or she give it to the person who uses it, or even that he or she importunes its use aloud.”

  Instead, as James and Tatiana N. explain and Butts reaffirms, the People need to prove that:

  “defendant knew that [the principal] possessed the weapon and shared the state of mind required for the commission of the offense, intentionally aiding [the principal] in such conduct and sharing a ‘community of purpose’ with him.”

  In Butts, the court finds this standard satisfied by several interconnected facts:

  • Defendant spoke with Jones about bringing a gun to the venue.
  • Witness 1 actually held the gun at Jones’s direction and returned it to him after the show.
  • Once defendant entered the SUV, angry about being punched, he repeatedly asked Jones for the gun (5–6 times) – very strong evidence of his knowledge that Jones had a firearm and of his interest in its use.
  • Defendant and Jones jointly instructed the driver to follow the sedan and then to pull alongside it, behavior consistent with a targeted confrontation.
  • The rear passenger window, where defendant was sitting, rolled down immediately before the shot, and a voice from the back seat asked, “Do you know what this is about?”
  • Immediately after the shooting, defendant told the others not to say anything—evidence of consciousness of guilt.

  From this, the court concludes that, even if defendant did not personally fire the gun or physically possess it at the exact moment of the shooting, he:

  1. knew that Jones had a loaded firearm in the vehicle, and
  2. shared a deliberate plan to confront and injure someone using that weapon.

  This “community of purpose,” coupled with his active participation in locating and pursuing the target vehicle, sufficed to convict him as an accomplice to weapon possession in the second degree. The court’s reasoning tracks the analysis in James, which involved stalking behavior culminating in a shooting.

  3. Rejecting the “Spontaneous Event” Argument: Monaco

  The defendant’s alternative theory—largely that witness 3 might have been a rogue shooter and that there was insufficient evidence of a prearranged plan—is implicitly addressed by the court’s reliance on People v. Monaco, 14 NY2d 43 (1964), which distinguished between:

  • a spontaneous eruption of violence that others present did not anticipate or share, versus
  • a planned or jointly pursued course of conduct where multiple participants share intent and aid each other.

  The court notes:

  “The evidence would in no way support an assertion that the shooting was spontaneous (compare People v. Monaco, 14 NY2d 43, 45 [1964]).”

  Here, the lengthy car pursuit, targeted following of multiple vehicles, joint directive to the driver, the rolling down of the back-seat window, and the spoken challenge just before the shot collectively demonstrate deliberation—not a sudden, unforeseen act by one occupant acting independently.

  Thus, Butts underscores that when the record shows preparation, coordinated pursuit, and use (or attempted use) of a firearm, appellate courts will be reluctant to characterize the incident as spontaneous in the Monaco sense.

  D. Corroboration of Accomplice Testimony Under CPL 60.22

  Because witness 1 was deemed an accomplice, her testimony alone could not support a conviction. CPL 60.22(1) provides:

  “A defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense.”

  The court cites:

  • People v. Reome, 15 NY3d 188 (2010), and
  • People v. Jones, 215 AD3d 1123 (3d Dept 2023)

  for the propositions that:

  • The corroborative evidence need not establish all elements of the offense.
  • It need not be strong in itself.
  • It suffices if it “tends to connect” the defendant to the crime, in a way that gives the jury reason to believe the accomplice is telling the truth.

  In Butts, corroboration came from two main sources:

  1. Witness 2 – a non-accomplice whose testimony:
     • Placed defendant in the SUV after the show;
     • Confirmed his anger about the altercation at The Cave;
     • Confirmed that defendant and Jones were together in the back seat;
     • Corroborated that the back-seat occupants directed the pursuit and that the SUV pulled alongside the target vehicle;
     • Described the question “Do you know what this is about?” from the back seat immediately before the shot;
     • Confirmed that defendant later asked everyone not to say anything.
  2. Surveillance video – which:
     • Showed the SUV following the sedan, parking behind it, then moving alongside the driver’s door just before the victim is seen falling from the sedan;
     • Confirmed the spatial and temporal sequence that witness 1 and witness 2 described.

  The court concludes:

  “This testimony and video evidence was consistent with witness 1’s testimony and served ‘to connect . . . defendant with the commission of the crime in such a way as may reasonably satisfy the jury that [witness 1 was] telling the truth.’”

  Legally, this is a straightforward, orthodox application of CPL 60.22, but it reinforces a key practical point: corroboration often comes from contextual facts—defendant’s presence, his conduct, his statements—rather than from direct evidence that he actually committed the core criminal act (e.g., pulling the trigger).

  E. Application to the Assault in the Second Degree Count

  The assault count required proof that the defendant, with intent to cause physical injury to another person, caused such injury by means of a deadly weapon or dangerous instrument. The court’s analysis parallels its approach to the weapon-possession count.

  Even “assuming, without deciding,” that defendant was not the shooter, the court emphasized:

  • Defendant’s anger after the altercation.
  • His repeated demands for the gun.
  • His participation in directing the driver to follow the target vehicle and pull alongside it.
  • The spoken challenge immediately before the shot.
  • His instruction to others to keep quiet afterward.

  Taken together, these facts support an inference that defendant:

  1. intended that someone in the target vehicle be physically injured (even if he misidentified or did not care about the precise victim), and
  2. intentionally aided the gunman by locating, pursuing, and positioning the SUV for the shooting.

  The statutory language (“to such other person or to a third person”) covers precisely the scenario in which the intended target differs from the actual victim. Defendant’s liability as an accomplice does not turn on the identity of the injured person.

  F. The “Witness 3” Theory and the Limits of Appellate Reweighing

  Defendant’s main factual theory—both at trial and on appeal—was that witness 3, seated behind the driver, might have been the shooter. The appellate court responds in two key ways:

  • Lack of evidentiary support: There was no evidence that witness 3 possessed a gun; Jones was the only person independently tied to a firearm.
  • Jury prerogative: The defense argued this theory on summation, and the jury implicitly rejected it by convicting both defendant and Jones while not ascribing responsibility to an unknown third person. That determination is entitled to deference on both sufficiency and weight review.

  Thus, Butts illustrates the appellate courts’ reluctance to overturn jury verdicts based on speculative alternative theories that lack direct evidentiary grounding.

  G. The Missing Witness Charge and Its Limits

  Defendant requested a missing witness charge concerning Revis (the driver of the sedan and close friend of defendant). A missing witness charge allows the factfinder to draw an unfavorable inference against a party that fails to call a witness who:

  1. possesses material information,
  2. is expected to offer noncumulative testimony,
  3. is under that party’s control such that he or she would normally be expected to testify favorably to that party, and
  4. is available to be called.

  The court relies on People v. Dennis, 221 AD3d 1278 (3d Dept 2023), People v. Lorenz, 211 AD3d 1109 (3d Dept 2022), and People v. Martinez, 166 AD3d 1292 (3d Dept 2018), among others, for those elements. The standard of review is abuse of discretion (People v. Onyia, 70 AD3d 1202 [3d Dept 2010]; People v. Lawing, 119 AD3d 1149 [3d Dept 2014]).

  Here:

  • The prosecutor represented that:
    • Revis could not identify the shooter or the make/model of the SUV during the investigation;
    • He also told the grand jury that he did not know who the shooter was.
  • Defense counsel argued that Revis could testify about his close relationship with defendant, which would bear on the likelihood that defendant intended to harm Revis.

  The court’s reasoning:

  • Revis’s inability to identify the shooter would not materially advance the People’s case; if anything, it would be benign or favorable to the defense.
  • Testimony about a close relationship between defendant and Revis would also favor defendant, bolstering the defense argument that he lacked intent to harm Revis.

  Crucially, the missing witness doctrine requires a showing that the absent witness would be expected to testify favorably to the party who failed to call him. Here, Revis’s expected testimony would not reasonably be expected to aid the prosecution.

  The court therefore found no abuse of discretion in refusing the charge. This underscores that defense requests for missing witness charges cannot rest on the mere fact that the People did not call someone; they must demonstrate that the missing witness’s anticipated testimony would normally be expected to help the prosecution, not the defense.

  H. Wade Hearing and the “Familiarity” Exception

  A Wade hearing (from United States v. Wade, 388 US 218 [1967]) tests whether pretrial identification procedures were unduly suggestive and thus constitutionally tainted. Defendant argued that a Wade hearing should have been held concerning witness 1’s identification of him in a photo array.

  The Third Department rejects this because:

  • Witness 1 testified at the grand jury that she had known defendant for several years and saw him “probably every day.”
  • Under cases such as People v. Casanova, 119 AD3d 976 (3d Dept 2014), and People v. Smith, 137 AD3d 1323 (3d Dept 2016), a Wade hearing is unnecessary where the witness is so familiar with the defendant that there is little risk that a suggestive procedure could produce a misidentification.

  In other words, familiarity functions as a built-in safeguard against misidentification, rendering the particular composition of the photo array much less significant.

  I. Circumstantial Evidence Charge and the Role of Direct Evidence

  Defendant also contended that the trial court erred in failing to give a circumstantial evidence charge. The argument was unpreserved (defense counsel did not request such a charge), and the court further explained why it was meritless.

  Under People v. Hardy, 26 NY3d 245 (2015), a circumstantial evidence charge is required only where the proof of guilt rests solely on circumstantial evidence. The Court of Appeals in People v. Roldan, 88 NY2d 826 (1996), and the Third Department in People v. Guevara, 240 AD3d 1083, reinforced that no such charge is necessary when the case includes both direct and circumstantial evidence.

  The court invokes People v. Taylor, 196 AD3d 851 (3d Dept 2021), for the definition:

  “Direct evidence is evidence of a fact based on a witness’s personal knowledge or observation of that fact.”

  It then notes that, while no one directly saw defendant fire the gun or hold it:

  • Witnesses directly observed and testified that:
    • Defendant and Jones discussed bringing a gun to the venue;
    • Jones actually brought a gun;
    • Defendant repeatedly insisted that Jones give him the gun;
    • Defendant participated in directing the pursuit and the positioning of the SUV;
    • He asked the others to keep quiet afterward.

  These are direct observations of conduct and statements that, if believed, establish defendant’s knowledge and participation as an accomplice. Therefore, the case was not “solely circumstantial,” and a circumstantial evidence charge was not required.

  J. Ineffective Assistance of Counsel

  Defendant argued that counsel was ineffective for failing to request a circumstantial evidence charge. The court, citing People v. Luna, 228 AD3d 1061 (3d Dept 2024), references the principle that counsel is not ineffective for failing to pursue a motion or request that had “little or no chance of success.”

  Because the evidence was not purely circumstantial, a circumstantial evidence charge would not have been warranted even if requested. Thus, counsel’s omission could not be deemed objectively unreasonable or prejudicial.

  K. Prosecutorial Misconduct and Preservation

  Defendant raised claims of prosecutorial misconduct based on certain comments made during the prosecutor’s summation. The court disposes of these claims summarily as:

  • Unpreserved: No contemporaneous objections were made to the challenged remarks, as required by New York’s preservation doctrine.

  This is a recurring theme in appellate practice: failure to object at trial generally forfeits the issue for appellate review, barring rare “mode of proceedings” defects.

  L. Sentencing and Appellate Review

  The court also declined to reduce defendant’s sentence in the interest of justice under CPL 470.15(6)(b). While acknowledging defendant had no prior criminal history, the Third Department:

  • Considered “all relevant facts and circumstances,”
  • Concluded that the sentence (10 years on the weapon count, 5 years on the assault, concurrent, with postrelease supervision) was not unduly harsh or severe for a deliberate, drive-by-style shooting with a firearm.

  The court’s reluctance to reduce the sentence underscores the seriousness with which New York courts treat firearm-related violence, particularly in public spaces and involving multiple occupants of vehicles.

  M. Procedural Note: Vacatur of the Earlier Appellate Decision

  A noteworthy procedural footnote (Footnote 2) records that:

  • An earlier decision by the Third Department affirming the conviction (226 AD3d 1089 [3d Dept 2024]) was vacated.
  • The reason: it emerged that the attorney who argued the appeal for the People had “personal and substantial” involvement as a law clerk to the trial judge.
  • The matter was remitted for appointment of a special prosecutor, and the appeal was restored to the calendar.

  While the present opinion does not dwell on the legal standards for conflicts of interest in appellate advocacy, the footnote implicitly emphasizes the judiciary’s vigilance in avoiding even the appearance of partiality where an attorney has previously participated in the matter in a quasi-judicial capacity (here, as a law clerk).

  IV. Complex Concepts Simplified

  For non-lawyers or newer practitioners, the following clarifications may be helpful.

  1. Accomplice (Accessorial) Liability

  You can be convicted of a crime in New York even if you did not personally:

  • Hold the gun,
  • Pull the trigger, or
  • Deliver the physical blow.

  If you intentionally help someone else commit the crime—by planning, driving, scouting, or otherwise facilitating it—and you share their criminal intent, you are as guilty as the person who physically carries out the act. That is the essence of Penal Law § 20.00.

  2. Constructive Possession

  “Possession” in the law is broader than physically holding an object. Constructive possession means you effectively control an item because:

  • It is in an area you control (e.g., your closet, your car’s console), or
  • You effectively control the person who physically holds it for you (e.g., you tell someone to hold your gun and give it back later).

  In Butts, the weapon-possession conviction was more firmly grounded in accomplice liability than in direct constructive-possession doctrine, but the two concepts are related.

  3. “Community of Purpose”

  “Community of purpose” is a phrase courts use to describe when two or more people are not just present together, but are acting together with the same criminal goal. Factors that show a community of purpose include:

  • Joint planning or discussion of a crime,
  • Coordinated actions (like following a victim’s car together),
  • Mutual support during the crime (like blocking escape routes),
  • Coordinated cover-up afterward (asking everyone to stay silent).

  In Butts, defendant’s repeated demands for the gun, his participation in directing the pursuit, and his silence directive after the shooting all supported an inference of shared purpose.

  4. Corroboration of Accomplice Testimony (CPL 60.22)

  New York law is skeptical of convicting someone based solely on the word of an accomplice (someone who participated in the crime), because accomplices may lie to protect themselves or to secure a favorable deal. Therefore:

  • The accomplice’s testimony must be supported by other evidence that “tends to connect” the defendant to the crime.
  • This supporting evidence does not have to be strong or complete; it just needs to give the jury some independent reason to believe the accomplice is telling the truth.

  In Butts, witness 2’s testimony and the surveillance video did exactly that.

  5. Missing Witness Charge

  A missing witness charge allows the jury to infer that, if a party fails to call a witness:

  • who has important information,
  • who is under that party’s control, and
  • who would normally be expected to testify in that party’s favor,

  then the witness’s testimony would not actually have helped that party—and might even have hurt them. But this charge is not automatic. The proponent must first persuade the judge that the absent witness really meets those criteria.

  6. Wade Hearing

  A Wade hearing is a pretrial hearing to decide whether police identification procedures (like lineups or photo arrays) were unfairly suggestive, creating a serious risk of misidentification. But when the witness already knows the defendant well (e.g., a family member, close friend, daily associate), suggestiveness is much less of a concern. In such cases, courts often decline to order a Wade hearing.

  7. Circumstantial Evidence vs. Direct Evidence

  • Direct evidence – a witness personally saw or heard something (e.g., “I saw him fire the gun,” “I heard him say he wanted to shoot someone”).
  • Circumstantial evidence – the fact is inferred from other facts (e.g., “I heard a gunshot, and then I saw him run away with a gun and smelling like gunpowder”).

  Circumstantial evidence can be just as powerful as direct evidence. A special circumstantial evidence jury instruction is only required when all the evidence is circumstantial—which was not the case here.

  V. Impact and Broader Significance

  1. Reinforcing Broad Accomplice Liability in Firearm Cases

  People v. Butts solidifies and illustrates a key line of New York jurisprudence: in violent firearm incidents involving multiple participants—especially those involving vehicles, coordinated movements, and group pursuit—a defendant need not be identified as the shooter or the physical possessor of the gun to face serious weapon and assault convictions.

  Where the People can show:

  • prior discussions about bringing or using a gun,
  • knowledge that a co-defendant actually has a gun,
  • coordinated activity in locating and approaching a target, and
  • efforts to conceal the crime afterward,

  the courts are willing to find a “community of purpose” sufficient to establish accomplice liability for both weapon possession and the ensuing violence.

  2. Practical Guidance for Prosecution and Defense

  For prosecutors:

  • Focus on context and coordination. Testimony about conversations (e.g., plans to bring a gun), movements (e.g., following a target car), and post-crime conduct (e.g., telling others to keep quiet) can be crucial in proving accessorial liability.
  • Use corroboration strategically. In cases resting on accomplice testimony, independent confirmation of seemingly minor details can satisfy CPL 60.22’s corroboration requirement.

  For defense counsel:

  • Challenging “community of purpose” is essential. It is not enough to show the defendant was present; the key is undermining evidence of shared intent and active assistance.
  • Missing witness and Wade arguments must be carefully grounded. Courts will deny missing witness charges where expected testimony is favorable to the defense, and Wade hearings where witnesses are already very familiar with the defendant.
  • Preservation is critical. Failure to object to summation or to request appropriate charges (when they are justified) can forfeit potentially powerful appellate issues.

  3. Clarifying Direct vs. Circumstantial Evidence in Joint-Venture Cases

  Butts also provides a useful example for trial courts on when a circumstantial evidence charge is—and is not—required. Even when the core act (firing the shot) is unobserved, testimony about what the defendant said and did can supply direct evidence of crucial elements such as knowledge and intent. This reduces the universe of cases in which a circumstantial evidence charge is mandated.

  4. The Conflict-of-Interest Note as Institutional Guidance

  While not the focus of the opinion, Footnote 2’s acknowledgment that a prior appellate decision had to be vacated because the People’s appellate counsel previously had “personal and substantial” involvement as the trial judge’s law clerk underscores:

  • the judiciary’s sensitivity to conflicts and
  • the need for prosecutors’ offices to screen attorneys for prior involvement in the same case in a judicial or quasi-judicial role.

  This has systemic implications for how district attorney’s offices manage personnel who transition from clerkships to prosecutorial roles.

  VI. Conclusion

  People v. Butts is a comprehensive, fact-intensive reaffirmation of established New York doctrines regarding accomplice liability, constructive possession, and corroboration of accomplice testimony. It stands as a prominent example of how courts will:

  • uphold convictions in multi-person, gun-related incidents based on a defendant’s knowledge, intent, and coordinated conduct;
  • treat accomplices and principals identically for liability purposes when accessorial requirements are satisfied;
  • apply CPL 60.22’s corroboration requirement flexibly, focusing on whether evidence tends to connect the defendant to the crime rather than whether it independently proves guilt;
  • limit missing-witness and identification-related challenges where the underlying doctrinal thresholds (favorability and familiarity) are not met; and
  • defer to properly instructed juries on credibility and competing theories of who actually fired the gun.

  By articulating these principles in the context of a modern, vehicle-based shooting, the Third Department’s opinion will likely serve as a frequently cited authority in future New York prosecutions involving group criminal activity, firearms, and contested roles among co-defendants. It underscores the breadth of accomplice liability and highlights the importance of corroborative context in securing and sustaining convictions where direct proof of the trigger-puller is unavailable.