| People v Junior |
| 2014 NY Slip Op 05463 [119 AD3d 1228] |
| July 24, 2014 |
| Appellate Division, Third Department |
[*1]
| 1 The People of the State of New York, Respondent, vAmin Junior, Appellant. |
Donna Maria Lasher, Youngsville, for appellant.
James R. Farrell, District Attorney, Monticello (Meagan K. Galligan of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Sullivan County (LaBuda,J.), rendered January 3, 2012, upon a verdict convicting defendant of the crimes of gangassault in the second degree, assault in the second degree and criminal possession of aweapon in the third degree.
In September 2010, defendant, the victim and at least two other men were involvedin a physical altercation at a bar, during which the victim's face, neck and head were cutby a piece of broken glass, requiring more than 40 stitches. The victim later developed ablood clot, requiring him to go to the hospital daily to have the laceration on hischeek—which was several inches long—packed with medicated gauze. Asa result, defendant was charged in an indictment with gang assault in the second degree,assault in the second degree and criminal possession of a weapon in the third degree.Following a combined Wade/Huntley hearing, County Court denied defendant'smotion to suppress his statements to police and his identification in a photo array by thebartender. Thereafter, the court denied his motion to preclude introduction ofsurveillance video from the bar. The matter proceeded to trial, at the close of whichdefendant was convicted as charged and sentenced to an aggregate prison term of fiveyears to be followed by five years of postrelease supervision. Defendant nowappeals.
We affirm. Initially, we reject defendant's challenge to the legal sufficiency of theevidence and his assertion that the verdict is against the weight of the evidence.Defendant argues that there is no evidence to establish that he participated in any activity,aside from a [*2]single punch, that resulted in injury tothe victim. In particular, he maintains that the People failed to prove that he intended tocause physical injury to the victim and was aided by two or more persons actuallypresent, elements of gang assault in the second degree (see Penal Law§ 120.06). Defendant further asserts that the People failed to prove that heacted in concert with anyone—i.e., that, with the requisite mental culpability forthe commission of gang assault in the second degree, he "solicit[ed], request[ed],command[ed], importune[d], or intentionally aid[ed]" another—such that the gangassault charge could be sustained under a theory of accessorial liability (Penal Law§ 20.00; seePeople v Sanchez, 13 NY3d 554, 567 [2009]). Similarly, defendant asserts thatthe People failed to prove that he acted in concert with anyone in causing physical injuryby means of a dangerous weapon or in possessing a dangerous weapon with the intent touse it unlawfully against another person, elements of accessorial liability for assault inthe second degree and criminal possession of a weapon in the third degree as charged tothe jury without objection (see Penal Law §§ 20.00, 120.05[2]; 265.01 [2]; 265.02 [1]).[FN1]
We note that, apart from defendant's specific objection that the People failed to provethat he had acted in concert with anyone, defendant made only a general motion todismiss the charges against him. Thus, his challenge to the legal sufficiency of theevidence is largely unpreserved for our review (see People v Finger, 95 NY2d894, 895 [2000]; see also People v Finch, 23 NY3d 408, 413-415 [2014]). Nevertheless, we necessarily consider whether all of theelements of the charged crimes were proven beyond a reasonable doubt in resolvingdefendant's assertion that the verdict was against the weight of the evidence, a claim thatdoes not require preservation (see People v Thomas, 105 AD3d 1068, 1069-1070 [2013],lv denied 21 NY3d 1010 [2013]; People v Townsend, 94 AD3d 1330, 1330 n 1 [2012],lv denied 19 NY3d 1105 [2012]).[FN2]
The victim's testimony here established that defendant, who was in a romanticrelationship with the mother of the victim's child, became upset because he believed thatthe victim was lying about him to a mutual friend. The victim stated that defendant andtwo men whom he did not know arrived at the bar on the night in question and, while thevictim was speaking to the mutual friend, one of the men first stood near them and thensat with defendant at the bar. Both the victim and the bartender testified that defendantand the two men subsequently left the bar briefly, and reentered through a side door nearthe victim. Defendant confronted the victim and, after they exchanged words, all threemen attacked the victim, with defendant first punching him in the face. The victimindicated that he was hit from the right side with a bottle and from the left side with aglass; the bartender testified that she heard the sound of breaking [*3]glass and saw the victim emerge from the brawl appearingbloody. In addition, the owner of the bar testified for the purpose of admitting intoevidence surveillance footage, which showed the confrontation, with the two unknownassailants standing on either side of the victim and defendant lunging toward the victim,starting the fight in motion.
"Based on the weight of the credible evidence," we conclude that "the jury wasjustified in finding the defendant guilty beyond a reasonable doubt" (People v Danielson, 9 NY3d342, 348 [2007]; accord People v Kancharla 23 NY3d 294, 302-303 [2014]; see People v Sanchez, 13 NY3d at 566-567;People v Torres, 108 AD3d474, 475 [2013], lv denied 22 NY3d 998 [2013]; People v Gholam, 99 AD3d441, 442 [2012], lv denied 20 NY3d 1061 [2013]; cf. People v Chardon, 83AD3d 954, 956-957 [2011], lv denied 18 NY3d 857 [2011]). That is,although a different result would not have been unreasonable, the verdict was supportedby the weight of the evidence. Defendant's assertions that he did not know the two otherassailants and that he was merely trying to break up the fight presented an issue ofcredibility that was appropriately resolved by the jury. According deference to thatdetermination and viewing the evidence in a neutral light (see People v Perry, 116 AD3d1253, 1255 [2014]; Peoplev Tubbs, 115 AD3d 1009, 1010 [2014]), we conclude that defendant'sconvictions are not against the weight of the evidence.
Defendant's remaining arguments do not require extended discussion. His assertionthat County Court failed to adequately set forth its findings of fact, conclusions of lawand the reasons therefore on the record at the close of the suppression hearing was notpreserved for this Court's review (see People v Perez, 89 AD3d 1393, 1395 [2011], lvdenied 18 NY3d 961 [2012]), and reversal in the interest of justice is unwarrantedinasmuch as the argument lacks merit (see People v Pagan, 103 AD3d 978, 979 [2013], lvdenied 21 NY3d 1018 [2013]; People v Pickren, 284 AD2d 727, 728 [2001],lv denied 96 NY2d 923 [2001]). There is similarly no merit to his argument thatCounty Court abused its discretion in denying his motion in limine to exclude thesurveillance video. The video was authenticated by the testimony of the owner of thebar—who was familiar with the operation of the bar's security system and hadreviewed the footage numerous times—as well as that of the victim, whoacknowledged that it fairly and accurately depicted the incident (see People v Boyd, 97 AD3d898, 899 [2012], lv denied 20 NY3d 1009 [2013]; People v Lee, 80 AD3d1072, 1073-1074 [2011], lv denied 16 NY3d 832 [2011]). Although brieflapses occur between the video's frames, these time lapses did not invite unduespeculation or preclude admission of the video into evidence (see People v Boyd,97 AD3d at 899). Finally, although defendant is arguably correct that County Courtabused its discretion in limiting the scope of his re-cross-examination of the victimregarding the victim's allegedly threatening behavior towards defendant and the othertwo assailants, any error in that regard was harmless in light of the overwhelmingevidence of defendant's guilt and the victim's prior admission that he had becomefrustrated and cursed at all three men (see People v Bruno, 111 AD3d 488, 490 [2013]; see generally People v Halter,19 NY3d 1046, 1050-1051 [2012]; cf. People v Williamson, 77 AD3d 1183, 1184-1185[2010]).
Defendant's remaining contentions have been considered and found to be lacking inmerit.
Lahtinen, J.P., McCarthy, Garry and Lynch, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:The indictmentmisidentified the charge of criminal possession of a weapon in the third degree as PenalLaw § 265.02 (2). The parties agreed that the proper section was Penal Law§ 265.02 (1).
Footnote 2:Defendant's contentionthat the People failed to prove beyond a reasonable doubt that the victim suffered a"serious physical injury," an element of gang assault in the second degree (seePenal Law §§ 10.00 [10]; 120.06), is patently meritless given hisstipulation at trial that the People proved the element (see People v Thomas, 105AD3d at 1070; People vAlexander, 37 AD3d 908, 910 [2007], lv denied 9 NY3d 839 [2007]).