| People v Sarita |
| 2010 NY Slip Op 07589 [77 AD3d 555] |
| October 26, 2010 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v DannySarita, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Timothy C. Stone of counsel), forrespondent.
Judgment, Supreme Court, New York County (Thomas Farber, J.), rendered August 25, 2009,convicting defendant, after a jury trial, of gang assault in the second degree, and sentencing him to aterm of four years, unanimously affirmed.
Defendant did not preserve his challenges to the legal sufficiency of the evidence and we decline toreview them in the interest of justice. As an alternative holding, we also reject them on the merits. Wefurther find that the verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342,348-349 [2007]). There is no basis for disturbing the court's determinations concerning credibility. Theevidence established that defendant cut the victim's face with a sharp object. The fact that the juryacquitted defendant of another charge does not warrant a different conclusion (see People vRayam, 94 NY2d 557 [2000]).
The court properly instructed the jury with regard to the theory of accomplice liability in connectionwith the gang assault charge, since the People were not required to specify in the indictment whetherdefendant was being charged as a principal, an accomplice, or both (see People v Rivera, 84NY2d 766 [1995]). Indeed, in the opening statements the People put forth all three theories of liability.Defendant did not preserve his claims of surprise and improper amendment of the indictment, or anyconstitutional claim, and we decline to review them in the interest of justice. As an alternative holding,we also reject them on the merits.
The court properly exercised its discretion in denying defendant's mistrial motion based on aclaimed impropriety in the prosecutor's summation, since, even assuming the prosecutor's remark wasimproper, the court's prompt curative actions were sufficient to prevent any prejudice (see People vSantiago, 52 NY2d 865 [1981]). Defendant's remaining summation claims are unpreserved andwe decline to review them in the interest of justice. As an alternative holding, we also reject them on themerits (see People v Overlee, 236 AD2d 133 [1997], lv denied 91 NY2d 976[1998]; People v D'Alessandro, 184 AD2d 114, 118-119 [1992], lv denied 81NY2d 884 [1993]). Concur—Tom, J.P., Saxe, Catterson, Renwick and DeGrasse,JJ.