| People v Andrews |
| 2015 NY Slip Op 03201 [127 AD3d 1417] |
| April 16, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Rupert Andrews, Appellant. |
Ralph Cherchian, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter Willis of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the Supreme Court (Milano, J.), renderedSeptember 20, 2012 in Schenectady County, upon a verdict convicting defendant of thecrimes of attempted assault in the first degree and gang assault in the first degree.
In September 2011, two individuals confronted defendant at a deli. A thirdindividual, the victim in this case, availed himself of defendant's cash, marihuana and cellphone, which were strewn onto the floor during an ensuing altercation. Afterwards,defendant followed the victim from the deli, the two exchanged words and, as the victimwalked away, he overheard defendant telephone a request that someone "go get themag," which the victim believed to mean a gun. Later that evening, the victim returned tothe deli and observed defendant and two other men watching him from a nearbyapartment window. The victim saw the light in the window go out and, moments later,saw defendant, whom the victim described as "charged," and three other individualscome out to the street. The men surrounded the victim, who began fist fighting withdefendant. Gun shots rang out and a group of individuals, including the victim, ran awayfrom the site of this first altercation. Defendant and the victim then continued fighting inan area down the block from the deli and, as defendant held the victim's leg, another manslashed the victim's face with a razor blade. The assailants left the victim bleeding in thestreet. Eventually, the victim was transported to the hospital, where he received 80stitches to close the wound. As is relevant to this appeal, defendant was convicted after ajury trial of gang assault in the first degree and attempted assault in the first degree andwas sentenced to concurrent prison terms of [*2]15 yearswith five years of postrelease supervision and 17 years with five years of postreleasesupervision, respectively. Defendant now appeals.
Upon review of the evidence presented at trial, we find that the jury's verdict wassupported by legally sufficient evidence and was not contrary to the weight of theevidence (see People v Bleakley, 69 NY2d 490, 495 [1987]). A conviction forgang assault in the first degree is supported by proof that "[a] person . . . ,with intent to cause serious physical injury to another person and when aided by two ormore other persons actually present, . . . causes serious physical injury tosuch person" (Penal Law § 120.07; accord People v Sanchez, 13 NY3d 554, 563 [2009]). Here,Mark Green, who lived in an apartment near the deli, testified that defendant went toGreen's apartment after the victim stole his money, marihuana and phone, and summonedClarence Stanford and Jerod Hemmingway to the apartment to help him plan his revenge.Hemmingway and Stanford testified that they went to Green's apartment at defendant'sbehest with a razor blade and gun, respectively. For his part, Hemmingway testified that,in response to taunting from the others, he joked that a razor blade was all he would needto fight the victim. Green testified that they saw the victim arrive at the deli and that allfour men then went downstairs, but that he stayed on the porch while Stanford,Hemmingway and defendant approached the victim. According to Green, as the victimtried to fight them off, defendant, Stanford and Hemmingway chased the victim down thestreet, with Stanford firing the gun at the victim as they ran after him. According to thevictim, Stanford followed him to the area where defendant caught him and held him asHemmingway slashed his face.
We reject defendant's argument that the People failed to prove the element that hehad been aided by two or more people actually present. We recognize that the incidentstarted in one location with defendant and at least three people present, and that thevictim was slashed with the razor blade at a second location approximately one blockaway. As to the second location, there is conflicting evidence with regard to how manypeople were present. To conclude that a person was "actually present" during a gangassault (Penal Law § 120.07), the proof must demonstrate that he or shewas "in the immediate vicinity of the crime, and [was] capable of rendering immediateassistance to an individual committing the crime" (People v Sanchez, 13 NY3d at564; see People v Johnson,107 AD3d 1161, 1163-1164 [2013], lv denied 21 NY3d 1075 [2013]; People v Cordato, 85 AD3d1304, 1312 [2011], lv denied 17 NY3d 815 [2011]). Here, we find that theevidence was legally sufficient to establish that defendant acted with the aid of two ormore people who were actually present because, viewing all the evidence in the lightmost favorable to the People, we can infer that, at all times, Hemmingway and Stanfordwere in the immediate vicinity and able to assist defendant in the assault.
Defendant also contends that the People failed to demonstrate that the victimsuffered a serious physical injury, a defined element of the crime of gang assault in thefirst degree (see Penal Law §§ 10.00 [10]; 120.07). Inasmuchas defendant's trial motions to dismiss did not address this specific issue, his challenge tothe legal sufficiency of the evidence presented in support of this element is not preservedfor our review (see People v Finger, 95 NY2d 894, 895 [2000]; People v Junior, 119 AD3d1228, 1229 [2014], lv denied 24 NY3d 1044 [2014]). Nevertheless, weevaluate the adequacy of the evidence as to each element of the crime as part of ourweight of the evidence review (see People v Danielson, 9 NY3d 342, 349 [2007];People v Junior, 119 AD3d at 1229; People v Johnson, 107 AD3d at1163 n 2).
A "serious . . . disfigurement" qualifies as a serious physical injury if itis "objectively distressing or objectionable" (People v Stewart, 18 NY3d 831, 832 [2011] [internalquotation marks and citation omitted]). This objective standard requires consideration ofthe injury "in context, considering its location on the body and any relevant aspects of thevictim's overall [*3]physical appearance" (People v McKinnon, 15 NY3d311, 315 [2010]). Here, the victim testified that he received 80 stitches to close thewound across his cheek. Although he was reluctant to display his injury to the jury, theevidence included photographs of the victim's scar. These photographs, taken at the timeof trial, show a significant, uneven scar running across the victim's cheek from his ear tohis mouth. Although a different verdict would not have been unreasonable, viewing thisevidence in a neutral light (see People v Danielson, 9 NY3d at 348; People vBleakley, 69 NY2d at 495; People v Powell, 101 AD3d 1369, 1370 [2012], lvdenied 21 NY3d 1019 [2013]), we perceive no error in the jury's determination thatthe victim suffered a serious physical injury (see People v Powell, 101 AD3d at1370; compare People vTrombley, 97 AD3d 903, 903 [2012]).
Finally, although defendant did not preserve his challenge to the legal sufficiency ofthe evidence supporting the jury's verdict on the attempted assault in the first degreecharge, he does contend that the verdict on this count was contrary to the weight of theevidence. As is relevant here, a conviction for attempted assault in the first degree mustbe supported by evidence that the defendant attempted to cause serious physical injury toanother person by means of a deadly weapon (see Penal Law§§ 110.00, 120.10 [1]). Here, as it was not defendant who shot thegun, the charge was based on defendant's accessorial liability (see Penal Law§ 20.00). "A defendant may be held criminally liable for the conduct ofanother person when, acting with the mental culpability required for the commissionthereof, [the defendant] solicits, requests, commands, importunes, or intentionally aidssuch person to engage in such conduct" (People v Fancher, 116 AD3d 1084, 1086 [2014] [internalquotation marks and citation omitted]). Here, as an acquittal would not have beenunreasonable, we view the evidence in a neutral light and find that the verdict was notagainst the weight of the evidence. Our holding in this regard remains even thoughdefendant's codefendant was acquitted of the charges against him (see Penal Law§ 20.05 [2]; Peoplev Thomas, 5 AD3d 305, 307 [2004], lv denied 2 NY3d 807 [2004];People v Gemmill, 146 AD2d 951, 952 [1989]).
Peters, P.J., Garry and Rose, JJ., concur. Ordered that the judgment is affirmed.