| People v Campbell |
| 2010 NY Slip Op 09553 [79 AD3d 624] |
| December 28, 2010 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v RaheemCampbell, Appellant. |
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Judgment, Supreme Court, New York County (Marcy L. Kahn, J.), rendered January 5, 2009,convicting defendant, after a jury trial, of attempted gang assault in the first degree and assault in thesecond degree, and sentencing him to concurrent terms of four years and three years, respectively,unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing theconviction for second-degree assault to third-degree assault and reducing the sentence on thatconviction only to time served, and otherwise affirmed.
The verdict convicting defendant of attempted gang assault in the first degree was based on legallysufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is nobasis for disturbing the jury's credibility determinations. The evidence showed that defendant and threeother men repeatedly punched and kicked the victim as he lay on the ground.
However, the evidence did not establish defendant's guilt of second-degree assault based on theuse of a dangerous instrument, charged under an acting-in-concert theory. There was no claim thatdefendant personally used a knife, and there was no evidence even to suggest that defendant wasaware that one of the other attackers used a knife. The use of the knife was not open and obvious.
We reach defendant's unpreserved sufficiency claim in the interest of justice, and reduce theconviction to third-degree assault. In view of that determination, we find it unnecessary to reachdefendant's other claim relating to the second-degree assault conviction.
Defendant failed to preserve his arguments regarding the prosecutor's summation, and we declineto review them in the interest of justice. As an alternative holding, we find no basis for [*2]reversal, since the court's charge was sufficient to prevent the challengedremarks from causing any prejudice. We have considered and rejected defendant's related claim ofineffective assistance of counsel. Concur—Gonzalez, P.J., Mazzarelli, Sweeny, Richter andManzanet-Daniels, JJ.