| People v Rivera |
| 2010 NY Slip Op 01824 [71 AD3d 701] |
| March 2, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Sarvelio Rivera, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Andrea M. DiGregorio and Cristin N.Connell of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Honorof,J.), rendered November 12, 2008, convicting him of gang assault in the first degree, upon hisplea of guilty, and imposing sentence.
Ordered that the judgment is reversed, on the law, the plea is vacated, and the matter isremitted to the Supreme Court, Nassau County, for further proceedings on the indictment, atwhich the defendant shall be represented by new trial counsel.
On September 2, 2008, the defendant pleaded guilty to gang assault in the first degree, aviolation of Penal Law § 120.07. The charge arose out of an incident which took place onApril 15, 2007, as a result of which the defendant and his two codefendants were charged withthe stabbing death of Cornelio Vasquez.
During his allocution, the defendant stated that on the evening of the assault, he and his twocodefendants planned to fight with, and cause injury to, persons at another location. Infurtherance of their plan, the two codefendants set out in one vehicle, arriving at the scene beforethe defendant, who was in another vehicle. The defendant further stated that by the time hearrived at the scene, the stabbing already had taken place. Defense counsel informed the courtthat although there was no evidence that the defendant arrived at the scene during the fight, thedefendant was pleading guilty based upon his accessorial conduct in planning the fight andaiding and abetting the codefendants after the fight was over. The prosecution did not disputethis theory.
The crime of gang assault in the first degree requires that the defendant, with the intent tocause serious physical injury, causes serious physical injury to another person and that he beaided by two or more persons actually present (see Penal Law § 120.07). Contraryto the People's contention, constructive presence by accomplice liability is insufficient to sustaina conviction for gang assault in the first degree. The statute requires actual presence to the extentthat the other two persons must actually be in the immediate vicinity of the crime and be capableof rendering immediate assistance to the individual committing the crime (see People v Sanchez, 13 NY3d554 [2009]; People v Craft, 57AD3d 1388 [2008]; People v Varughese, 21 AD3d [*2]1126 [2005]). By admitting in his allocution only that he aided inplanning the assault, but was not present at the time the assault occurred, the defendant negatedan essential element of the crime and the allocution was, therefore, legally insufficient toestablish his guilt of gang assault in the first degree.
In addition, at the sentencing proceeding, when the defendant was attempting to withdrawhis plea, defense counsel asked that the sentence commitment be honored by the court. As such,counsel took a position adverse to his client, requiring the appointment of new trial counsel onremittal (see People v Dixon, 63AD3d 957 [2009]; People vBedoya, 53 AD3d 621 [2008]; People v Earp, 7 AD3d 538 [2004]; People v Caccavale,305 AD2d 695 [2003]).
Accordingly, we reverse the judgment, vacate the plea of guilty, and remit the matter to theSupreme Court, Nassau County, for further proceedings (see People v Rodriguez, 14 AD3d 719, 720 [2005]; People vPangburn, 298 AD2d 989 [2002]).
In light of our determination, we need not address the defendant's remaining contentions.Dillon, J.P., Miller, Eng and Roman, JJ., concur.