Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on January 3, 2013
Gonzalez, P.J., Friedman, Saxe, Richter, Abdus-Salaam, JJ.
Judgment, Supreme Court, New York County (John Cataldo, J., at jury trial and CPL 330.30 motion to set aside the verdict; Thomas Farber, J. at sentencing), rendered February 14, 2012, convicting defendant, after a jury trial, of gang assault in the second degree and assault in the third degree, and sentencing him to concurrent terms of 3½ years and 1 year, respectively, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the gang assault conviction, dismissing that count of the indictment, and remanding for resentencing on the remaining conviction, and otherwise affirmed.
On the prior appeal by the People in this case (89 AD3d 499 [1st Dept 2011]), this Court determined that the evidence was insufficient to establish that the victim suffered serious physical injury, but we were unable to provide defendant with any remedy given the procedural posture. In view of our prior decision, we review defendant's unpreserved claim in the interest of justice and agree with defendant that the evidence was legally insufficient to support his gang assault conviction.
We find no basis for ordering a new trial regarding the third-degree assault charge. Defendant's claim of improper cross-examination is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits for the reasons stated on the prior appeal (89 AD3d at 501).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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