Defendant accompanied Jennette, who shot and killed a police officer from a rooftop in Jersey City who was in uniform at the time. Jennette later pleaded guilty to the charge. Defendant had witnessed another cop strike and knock unconscious a girl who he knew and went with Jennette who engaged in the shooting to allegedly at her request … “to go up to the roof ‘to shoot the police.’” Defendant was charged with aiding and abetting the murder. At trial, in statements defendant claims both that “he did not know why he went up to the roof” and that he was not with Jennette on the roof at the time shots were fired. At trial defendant argued that he did not see Jennette’s firearm until they were both on the roof and did not know that Jennette had the intention to shoot a police officer. The state produced no evidence, however, disclaiming defendant’s assertions and instead argues that defendant was an aider and abettor because of his close friendship with Jennette, “knowledge of Jennette’s intentions to “shoot the police” and the latter’s possession of a gun with which to achieve this purpose.”
Trial judge rejected a request to charge from implications made in defendant’s statements that he was not present on the roof when the shots were fired. Defendant submitted the following requests to charge, which were rejected by the judge:
“If it is found that D went up to the roof with intention of killing or harming, but that the intention was abandoned before an attempt was made, you must acquit.”
“If D went to roof as a mere observer and did not participate in the shooting, you must acquit.”
Did the trial judge err in rejecting the requests to charge concerning implications from defendant’s testimony that he was not present on the roof when shots were fired?
The first charge implies that an aider and abettor must be present during the commission of the crime, which is incorrect and therefore was properly rejected by the trial judge. Presence at the scene of a crime is not an essential element for conviction of aiding and abetting. For instance, one may be the planner of the crime, but not present and should still be found guilty of aiding and abetting. Defendant presents evidence that he fled the scene upon seeing Jennette’s gun. However, fleeing the scene does not disclaim culpability for aiding and abetting. Defendant did not tell Jennette that he was leaving, nor did express his disapproval of the act. A spontaneous removal of oneself from the scene only briefly before the crime is not sufficient to keep the defendant from criminal liability.
Rejection of the second charge was not in error. Defendant’s accompaniment to the scene of the crime with the knowledge of Jennette’s intent is enough to convict. His mere presence in this content is implied approval of the act and supplies encouragement to Jennette. His presence, as a friend, in these given circumstances can constitute aiding and abetting.