| People v Snyder |
| 2011 NY Slip Op 03749 [84 AD3d 1710] |
| May 6, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Marvin J.Snyder, Appellant. |
—[*1] Barry L. Porsch, District Attorney, Waterloo, for respondent.
Appeal from a judgment of the Seneca County Court (Dennis F. Bender, J.), renderedDecember 21, 2009. The judgment convicted defendant, upon a jury verdict, of gang assault inthe first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of gangassault in the first degree (Penal Law § 120.07), defendant contends that County Courtabused its discretion in consolidating for trial defendant's indictment with those of twocodefendants. We reject that contention. All three codefendants were part of a group thatassaulted the same victim, and the evidence against them was virtually identical. Contrary todefendant's contention, there were no irreconcilable conflicts between the various defensetheories (see generally People v Mahboubian, 74 NY2d 174, 184-185 [1989]; Peoplev Roland, 283 AD2d 965 [2001], lv denied 96 NY2d 924 [2001]). Although none ofthe codefendants testified at trial, the primary defense of defendant and one of the codefendantswas that another individual who was not a defendant in the case had alone caused the victim'sinjuries by repeatedly stomping on his head. The remaining codefendant claimed that she was notanywhere near the victim when he was beaten. Defendant also raised a justification defense, butthat defense was not inconsistent with any of the other defenses asserted at trial. Moreover, thethree codefendants did not accuse each other of the crime, and none of their attorneys acted as asecond prosecutor against another codefendant. Under the circumstances, we conclude that thecourt did not abuse its discretion in consolidating the indictments for trial (see People v Buccina, 62 AD3d1252, 1253 [2009], lv denied 12 NY3d 913 [2009]; People v Wilburn, 50 AD3d 1617,1618 [2008], lv denied 11 NY3d 742 [2008]).
We reject the further contention of defendant that the evidence is legally insufficient toestablish that he caused the victim's injuries (see generally People v Bleakley, 69 NY2d490, 495 [1987]). Two prosecution witnesses testified that they observed defendant beating orkicking the victim as he lay defenseless on the ground. Another witness testified that defendantwas among a group of people that surrounded the victim during the beating, although sheadmitted that she was uncertain which individuals took part in the beating. Defense counselvigorously attacked the credibility of those witnesses, but it cannot be said that the testimony inquestion is incredible as a matter of law (see People v Williams, 81 AD3d 1281 [2011]; People v Nilsen, 79 AD3d 1759[2010]). Viewing the evidence in the light most favorable to the People (see People vContes, 60 NY2d [*2]620, 621 [1983]), we conclude thatthere was a " 'valid line of reasoning and permissible inferences [that] could lead a rationalperson' to convict" defendant of gang assault in the first degree (People v Santi, 3 NY3d 234, 246[2004], quoting People v Williams, 84 NY2d 925, 926 [1994]). In addition, viewing theevidence in light of the elements of the crime as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence(see Bleakley, 69 NY2d at 495).
Given the serious nature of the injuries inflicted upon the victim, who sustained permanentbrain damage, and considering defendant's criminal history, we conclude that the sentence is notunduly harsh or severe. We have reviewed defendant's remaining contentions and conclude thatthey lack merit. Present—Scudder, P.J., Smith, Lindley, Green and Gorski, JJ.