| People v Torres |
| 2013 NY Slip Op 05430 [108 AD3d 474] |
| July 23, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Daniel Torres, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (John B.F. Martin of counsel), forrespondent.
Judgment, Supreme Court, New York County (Daniel P. Conviser, J.), rendered May29, 2012, as amended January 15, 2013, convicting defendant, after a jury trial, ofrobbery in the first and second degrees, attempted gang assault in the first degree, andassault in the second degree, and sentencing him to an aggregate term of six years,unanimously affirmed.
The assault-related convictions were based on legally sufficient evidence and werenot against the weight of the evidence. The evidence supports the inference that whendefendant told his companions to "get" the victim, with whom he had just had a physicalaltercation, he intended for the assailants to commit the ensuing assault (see generallyPenal Law § 20.00; People v Allah, 71 NY2d 830 [1988]). Further,defendant does not dispute that, if we were to find that sufficient evidence supported thejury's conclusion that the "get him" comment revealed his intent that the assailants assaultcomplainant, the same conclusion would apply to the robbery charge.
In any event, the evidence supports the inference that defendant also intended thatthe assailants take the victim's money. The complainant was collecting entry fees for theparty at the club where he and defendant were before the complainant fled (promptingdefendant to say "get him") and there was testimony that defendant, who apparently wasan owner of the club, paid a great deal of attention to the money being handled by thecomplainant that evening, reminding him repeatedly to place the money in a box thecomplainant was holding for that purpose.
Defendant failed to preserve his claim that the court should have given the jury acircumstantial evidence charge, and we decline to review it in the interest of justice. Asan alternative holding, we find that no such charge was necessary, because defendant'sguilt was established by direct evidence from which the inference of accessorial liabilitycould be inferred (see People v Roldan, 88 NY2d 826 [1996]; People vDaddona, 81 NY2d 990 [1993]). The court thoroughly instructed the jury on theissues of intent and accessorial liability. For similar reasons, we reject defendant'sineffective assistance of counsel claim. The fact that counsel did not request acircumstantial evidence charge met an objective standard of reasonableness, and theabsence of such a charge did not deprive defendant of a fair trial or affect the outcome(see People v Benevento, 91 NY2d 708, 713-714 [1998]; see also Stricklandv Washington, 466 US 668 [1984]).[*2]
The court properly exercised its discretion inreceiving very limited evidence that some witnesses were reluctant to testify or cooperatewith the police. That evidence was relevant in context and was not unduly prejudicial. Byfailing to object, by making only generalized objections, and by failing to request furtherrelief after objections were sustained, defendant failed to preserve his remaining claimsof prosecutorial misconduct, and we decline to review them in the interest of justice. Asan alternative holding, we find no basis for reversal. To the extent there were anyimproprieties, the court's curative actions were sufficient to prevent any prejudice.Concur—Mazzarelli, J.P., Sweeny, Moskowitz, Manzanet-Daniels and Gische, JJ.