Louis Cohen, Kew Gardens, NY, for appellant.
Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard
Joblove and Diane R. Eisner of counsel), for respondent.
WILLIAM F. MASTRO, J.P. CHERYL E. CHAMBERS JOSEPH J. MALTESE
COLLEEN D. DUFFY, JJ.
DECISION & ORDER
by the defendant from a judgment of the Supreme Court, Kings
County (Chun, J.), rendered September 2, 2015, convicting him
of assault in the first degree, gang assault in the first
degree, and criminal possession of a weapon in the fourth
degree, upon a jury verdict, and imposing sentence.
that the judgment is affirmed.
defendant's convictions stem from an incident that
occurred on June 4, 2012, in Coney Island, Brooklyn. During
the incident, one person, Angel Reyes, sustained a stab wound
to his neck which cut an artery, and another person, Jose
Herrera, also known as Pica, was killed as a result of blunt
impact injuries to his head and stab wounds to his torso.
After a jury trial, the defendant was convicted of assault in
the first degree and gang assault in the first degree as to
Reyes, and criminal possession of a weapon in the fourth
degree. A codefendant at trial was convicted of murder in the
second degree as to Pica, attempted murder in the second
degree as to Reyes, and gang assault in the first degree. Two
unidentified individuals who also were alleged to be involved
in the incident were not apprehended.
to the defendant's contention, the evidence was legally
sufficient to establish beyond a reasonable doubt his guilt
of assault in the first degree and gang assault in the first
degree, based on an acting-in-concert theory (see
Penal Law §§ 20.00, 120.07, 120.10). "The
statutory definition of accessory liability provides that
[w]hen 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'" (People v Carpenter, 138
A.D.3d 1130, 1131, quoting Penal Law § 20.00; see
People v Scott, 25 N.Y.3d 1107, 1110). "Inasmuch as
the statute requires that the accomplice act with the mental
culpability required for the commission of the underlying
crime, an accomplice must have a shared intent, or community
of purpose' with the principal" (People v
Carpenter, 138 A.D.3d at 1131, quoting People v
Cabey, 85 N.Y.2d 417, 421; see People v Scott,
25 N.Y.3d at 1110).
viewed in the light most favorable to the People, the
evidence was legally sufficient to support the conviction of
assault in the first degree, as it established beyond a
reasonable doubt that the defendant shared his
companions' intent to cause serious physical injury to
Reyes by means of a deadly weapon or a dangerous instrument
(see Penal Law §§ 20.00, 120.10;
People v Smith, 302 A.D.2d 615, 616; see also
People v Scott, 25 N.Y.3d at 1110; People v
Allah, 71 N.Y.2d 830, 831-832). The evidence was also
legally sufficient to support the conviction of gang assault
in the first degree, as there was evidence that the defendant
and the others attacking Pica were sufficiently close to the
assault on Reyes that they were capable of rendering
immediate assistance, and therefore "actually
present" as required by Penal Law § 120.07 (see
People v Sanchez, 13 N.Y.3d 554, 563-567; People v
Andrews, 127 A.D.3d 1417, 1419).
was testimony that the defendant and three companions exited
a vehicle with weapons which were visible to the witnesses
present; the defendant held a metal pipe and a bottle and his
companions had knives. The evidence further demonstrated that
the defendant led the other car occupants in chasing the
victims and their group on foot through the street. During
the rapidly unfolding incident, the defendant joined two of
his cohorts who were already attacking Pica with knives, as
the fourth member of their group attacked Reyes with a knife.
The entire incident lasted approximately two minutes and the
attacks on Pica and Reyes occurred within close proximity, in
a street approximately 32 feet wide.
totality of the evidence demonstrates that the defendant
knowingly participated and continued to participate in an
attack on the victims-including Reyes-even after his
companions' intentions in using their knives were evident
(see People v Sanchez, 13 N.Y.3d at 566; People
v Allah, 71 N.Y.2d at 831-832; Matter of Tatiana
N., 73 A.D.3d 186, 191). Thus, the evidence was legally
sufficient to establish the defendant's guilt of assault
in the first degree and gang assault in the first degree as
to Reyes. Moreover, upon our independent review pursuant to
CPL 470.15(5), we are satisfied that the verdict of guilt as
to each crime was not against the weight of the evidence
(see People v Romero, 7 N.Y.3d 633).
defendant's acquittal of the charges of murder in the
second degree as to Pica and attempted murder in the second
degree as to Reyes does not change our conclusion; the jury
rationally could have found insufficient proof that the
defendant intended to cause the death of either Pica or Reyes
but that there was evidence beyond a reasonable doubt that
the defendant, who possessed a pipe and bottle, acted in
concert with the other perpetrators, each of whom had a
weapon, to cause serious physical injury to Reyes (see
People v Abraham, 22 N.Y.3d 140, 147; People v
Ellis, 133 A.D.3d 777, 778).
to the defendant's contention, the evidence regarding his
membership in a gang and the rivalries between Pica's
gang and his gang was relevant to the issue of the
defendant's motive and to explain the relationship among
the parties (see People v Bruno, 127 A.D.3d 986,
986; People v Guevara, 96 A.D.3d 781, 781). Since
the probative value of this evidence outweighed any prejudice
to the defendant, the Supreme Court providently exercised its
discretion in permitting the People to present such evidence
(see People v Gonzales-Martinez, 136 A.D.3d 651,
652; People v Bruno, 127 A.D.3d at 986; People v
Guevara, 96 A.D.3d at 781-782).
the Supreme Court improperly modified its Sandoval
ruling (see People v Sandoval, 34 N.Y.2d 371) by
permitting the prosecutor to cross-examine the defendant
about an assault in May 2011, the error was harmless.
Evidence of the defendant's guilt of each of the crimes
of which he was convicted, without reference to the error,
was overwhelming, and there is no significant probability
that the error contributed to the conviction (see People
v Crimmins, 36 N.Y.2d 230, 241-242; People v
Wongsam, 105 A.D.3d 980, 981-982; People v
Seabrooks, 82 A.D.3d 1130, 1130-1131).
sentence imposed was not excessive (see People v