| People v Meacham |
| 2011 NY Slip Op 03751 [84 AD3d 1713] |
| May 6, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v William A.Meacham, 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 the evidence islegally insufficient to establish that he intended to cause serious physical injury to the victim. Wereject that contention (see People vChowdhury, 22 AD3d 596 [2005], lv denied 6 NY3d 753 [2005]; seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]). Multiple witnesses testified at trialthat defendant repeatedly punched or kicked the victim while he was on the ground. As a resultof the beating, the victim sustained fractures to his face and skull, as well as permanent braindamage. Several relatives and a friend of defendant also struck the victim while he was on theground. The People presented evidence establishing that defendant spearheaded the assaultbecause he was angry with the victim for posting photographs of individuals identified asregistered sex offenders, including defendant, at the apartment complex where defendant and thevictim resided. Although defendant did not admit during the assault or anytime thereafter that hisintent was to cause serious physical injury to the victim, "[a] defendant may be presumed tointend the natural and probable consequences of his actions" (People v Mahoney, 6 AD3d 1104 [2004], lv denied 3 NY3d660 [2004]; see People v Getch, 50 NY2d 456, 465 [1980]). The natural and probableconsequences of repeatedly striking a man while he is on the ground defenseless is that he willsustain a serious physical injury within the meaning of Penal Law § 10.00 (10).Defendant's intent may also be "inferred from the totality of [his] conduct" (People vHorton, 18 NY2d 355, 359 [1966], mot to amend remittitur granted 19 NY2d 600[1967], cert denied 387 US 934 [1967]; see People v Mike, 283 AD2d 989[2001], lv denied 96 NY2d 904 [2001]), including the anger that defendant expressedtoward the victim for having identified him in the photograph as a registered sex offender.
Contrary to defendant's further contention, the evidence is legally sufficient to establish thathe was "aided by two or more other persons actually present" in causing serious physical injury tothe victim (Penal Law § 120.07; see generally Bleakley, 69 NY2d at 495). A friendof defendant who was staying in his apartment at the time of the assault testified that he observeddefendant and five other people hitting the victim while he was on the ground. Similar testimonywas given [*2]by another witness. Such testimony, accepted astrue, established that there were at least two other people "in the immediate vicinity of the crimeand [that they were] capable of rendering immediate assistance to [defendant]" (People v Rivera, 71 AD3d 701,702 [2010]). Further, based on our review of the record, we cannot conclude that the testimony ofthose witnesses was "so inconsistent or unbelievable as to render it incredible as a matter of law"(People v Witherspoon, 66 AD3d1456, 1457 [2009], lv denied 13 NY3d 942 [2010] [internal quotation marksomitted]; see People v Black, 38AD3d 1283, 1285 [2007], lv denied 8 NY3d 982 [2007]). Viewing the evidence inthe light most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]),we conclude that there was a " 'valid line of reasoning and permissible inferences [that] couldlead a rational person' to convict" defendant of gang assault in the first degree (People v Santi, 3 NY3d 234, 246[2004]; see People v Sanchez, 13NY3d 554, 566 [2009], rearg denied 14 NY3d 750 [2010]).
Viewing the evidence in light of the elements of the crime as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we reject defendant's contention that the verdict is against the weight ofthe evidence (see generally Bleakley, 69 NY2d at 495). Although defendant contends thatthe similar testimony of his friend and another witness is not worthy of belief, it is well settledthat issues relating to the credibility of witnesses are primarily within the province of the jury,which observed and heard the witnesses (see People v Massey, 61 AD3d 1433 [2009], lv denied 13NY3d 746 [2009]; People vSorrentino, 12 AD3d 1197 [2004], lv denied 4 NY3d 748 [2004]).
Defendant failed to preserve for our review his further contention that County Court erred infailing to give a limiting instruction with respect to the evidence establishing that the victimposted defendant's photograph and identified him as a sex offender (see People v Dandridge, 26 AD3d779, 780 [2006]). We decline to exercise our power to review that contention as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [a]). Defendant also failed topreserve for our review his contention that he was improperly penalized for exercising his rightto a jury trial (see People v Dorn, 71AD3d 1523 [2010]). In any event, that contention is without merit. "[T]he mere fact that asentence imposed after trial is greater than that offered in connection with plea negotiations is notproof that defendant was punished for asserting his right to trial" (People v Murphy, 68 AD3d 1730,1731 [2009], lv denied 14 NY3d 843 [2010] [internal quotation marks omitted]). Finally,the sentence is not unduly harsh or severe. Present—Scudder, P.J., Smith, Lindley, Greenand Gorski, JJ.