| People v Mazariego |
| 2014 NY Slip Op 03863 [117 AD3d 1082] |
| May 28, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Joni Mazariego, Appellant. |
Matthew Muraskin, Port Jefferson, N.Y., for appellant.
Kathleen M. Rice, District Attorney, Mineola, N.Y. (Tammy J. Smiley and Cristin N.Connell of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Nassau County(Sullivan, J.), rendered July 18, 2012, convicting him of manslaughter in the first degree,gang assault in the first degree, and attempted assault in the second degree, upon a juryverdict, and imposing sentence.
Ordered that the judgment is modified, as a matter of discretion in the interest ofjustice, by reducing the defendant's conviction of gang assault in the first degree undercount two of the indictment to attempted gang assault in the first degree, and vacating thesentence imposed thereon; as so modified, the judgment is affirmed, and the matter isremitted to the County Court, Nassau County, for sentencing on the conviction ofattempted gang assault in the first degree.
In December 2010, John Pareja, Plutarco Galindo, and two friends went to a barwhere the defendant was also present with a number of friends. Galindo and Pareja, whowere members of Sur Trece gang, engaged in a verbal altercation with the defendant andhis friends on the dance floor, during which the defendant's friends displayed handsignals associated with the Mara Salvatrucha, or MS-13, gang. Shortly thereafter,Galindo, Pareja, and their friends left the bar. The defendant and several of his friendsfollowed them, and a physical altercation ensued between the two groups on the sidewalkand street outside the bar. During the altercation, Galindo and Pareja were stabbed.Galindo died from his injuries, while Pareja suffered a cut to the right flank that wasapproximately three inches deep. Following a jury trial, the defendant was convicted ofmanslaughter in the first degree, which was charged as a lesser included offense ofmurder in the second degree, as well as gang assault in the first degree and attemptedassault in the second degree.
The defendant challenges his conviction of gang assault in the first degree, assertingthat the People failed to present legally sufficient evidence that Pareja suffered a "seriousphysical injury," which is defined as "physical injury which creates a substantial risk ofdeath, or which causes death or serious and protracted disfigurement, protractedimpairment of health or protracted loss or impairment of the function of any bodilyorgan" (Penal Law § 10.00 [10]). Although the defendant failed to preservefor appellate review his legal sufficiency argument in connection with this conviction (see People v Hawkins, 11NY3d 484, 492 [2008]; CPL 470.05 [2]), we review it as a matter of discretion inthe interest of justice. Viewing the evidence in the light most favorable to the prosecution(see People v Contes, 60 NY2d 620 [1983]), we find that it was legallyinsufficient to establish the defendant's guilt of gang assault in the first degree beyond areasonable doubt.
Although Pareja was stabbed in the right flank, his wounds required no stitches, andthere was no evidence that he suffered any permanent damage to his kidney, whichsuffered a small laceration. Moreover, when he was examined, Pareja was oriented andalert, able to converse, and had normal vital signs and blood pressure. Further, the onlyevidence of protracted disfigurement or impairment of health was that he had a scar,which the jury saw, and that he felt pain on the scar. The record, however, includes nodescription of the scar or what, if any, limitations Pareja suffered as a result of his injury.Thus, the People failed to adduce legally sufficient evidence that Pareja suffered a"serious physical injury" within the meaning of Penal Law § 10.00 (10),which is an element of gang assault in the first degree (see Penal Law§ 120.07; People vNimmons, 95 AD3d 1360, 1360-1361 [2012]; People v Adames, 52 AD3d617 [2008]).
The evidence was legally sufficient, however, to support a finding that the defendantcommitted attempted gang assault in the first degree by "engag[ing] in conduct whichtend[ed] to effect the commission of" (Penal Law § 110.00) that offense byacting in concert with others, with the intent to cause serious physical injury, even if suchinjury did not actually occur. The proof adduced at trial was legally sufficient to provethat the defendant came "dangerously near" the commission of the completed crime(People v Kassebaum, 95 NY2d 611, 618 [2001]) and, thus, established thedefendant's guilt of attempted gang assault in the first degree. Moreover, we are alsosatisfied that the jury's finding that the People established the elements of gang assault inthe first degree, other than the actual infliction of serious physical injury upon thecomplainant, was not against the weight of the evidence. Accordingly, we modify thejudgment by reducing the conviction on the second count of the indictment from gangassault in the first degree to the lesser included offense of attempted gang assault in thefirst degree (see CPL 470.15 [2] [a]; People v Serrano, 74 AD3d 1104, 1105-1106 [2010]; People v Ham, 67 AD3d1038, 1040 [2009]).
The defendant also challenges the legal sufficiency of the evidence supporting hisconviction of manslaughter in the first degree. Viewing the evidence in the light mostfavorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we findthat it was legally sufficient to establish the defendant's guilt of that offense beyond areasonable doubt.
Moreover, in fulfilling our responsibility to conduct an independent review of theweight of the evidence (seePeople v Danielson, 9 NY3d 342, 348 [2007]), we nevertheless accord greatdeference to the fact-finder's opportunity to view the witnesses, hear the testimony, andobserve demeanor (see People v Mateo, 2 NY3d 383 [2004]; People vBleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we aresatisfied that the verdict of guilt as to manslaughter in the first degree and attemptedassault in the second degree was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
In addition, the defendant was not deprived of his right to the effective assistance ofcounsel, as counsel provided meaningful representation (see People v Henry, 95NY2d 563, 565-566 [2000]; People v Benevento, 91 NY2d 708, 712 [1998];People v Baldi, 54 NY2d 137, 147 [1981]; People v Walston, 101 AD3d 1156, 1156-1157[2012]).
With respect to the defendant's challenge to the People's expert witness, the trialcourt providently exercised its discretion in finding that the People's expert was qualifiedto render an expert opinion on the history of gangs and about hand signals used byvarious gangs, as the witness demonstrated that he possessed the skill, training,knowledge, and experience necessary to explain this information (see People v Washington, 108AD3d 576, 577 [2013];People v Bryson, 101 AD3d 478 [2012]). Further, the witness's testimony wasproperly limited to information necessary to provide relevant background informationabout gang rivalry. Contrary to the defendant's assertion, the expert's testimony did notimpermissibly bolster the People's evidence. Balkin, J.P., Dickerson, Chambers and Hall,JJ., concur.