| People v Samuels |
| 2015 NY Slip Op 05968 [130 AD3d 757] |
| July 8, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Taron Samuels, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Ronald Zapata of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove andKeith Dolan of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Mangano, Jr., J.), rendered January 25, 2013, convicting him of assault in the firstdegree (two counts), gang assault in the first degree, and burglary in the first degree (twocounts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the facts, the indictment is dismissed, andthe matter is remitted to the Supreme Court, Kings County, for further proceedingsconsistent with CPL 160.50.
The defendant was charged with, inter alia, two counts of assault in the first degree,gang assault in the first degree, two counts of burglary in the first degree, and criminalpossession of a weapon in the fourth degree. The charges stemmed from an incidentinside the apartment of the victim, the defendant's brother-in-law. During the incident,the victim was beaten, and his face was slashed, while the defendant, the defendant'sbrother, and the defendant's sister's boyfriend were present. After trial, the jury convictedthe defendant of two counts of assault in the first degree, gang assault in the first degree,and two counts of burglary in the first degree.
The defendant failed to preserve for appellate review his challenges to the legalsufficiency of the evidence supporting his convictions of assault in the first degree, gangassault in the first degree, and burglary in the first degree (see CPL 470.05), andwe decline to review them in the exercise of our interest of justice jurisdiction (see e.g. People v Henderson,120 AD3d 1258 [2014], lv granted 25 NY3d 951 [2015]; People v Bridges, 63 AD3d752, 753 [2009]). However, in fulfilling our responsibility to conduct anindependent review of the weight of the evidence (see CPL 470.15), wedetermine that the jury verdict convicting the defendant of those charges was against theweight of the evidence.
To convict the defendant of assault in the first degree, the People were required toprove that the defendant either caused serious physical injury to the victim by means of adeadly weapon or a dangerous instrument, or that he disfigured the victim (seePenal Law § 120.10 [1], [2]). To convict the defendant of gang assaultin the first degree, the People had to prove that the defendant, with intent to cause seriousphysical injury to another person and when aided by two or more persons actuallypresent, caused serious physical injury to the victim (see Penal Law§ 120.07).
[*2] The evidencepresented by the People was that the defendant alone caused serious physical injury tothe victim by slashing him with an unidentified dangerous instrument. The jury was notcharged that the defendant was acting-in-concert with the others. While the defendantwas convicted of two counts of assault in the first degree and gang assault in the firstdegree, he was acquitted of criminal possession of a weapon in the fourth degree. Inconducting our weight of the evidence review, we may consider the jury's acquittal of thedefendant on that count (see People v Rayam, 94 NY2d 557, 563 [2000]; People v Johnson, 110 AD3d920, 921-922 [2013]; People v Small, 109 AD3d 842, 843 [2013]). Given thevictim's testimony that, during the struggle, he heard the defendant say "no, don't stabhim, don't stab him," and that he did not see who slashed him, and considering thattestimony along with the jury's acquittal of the defendant of criminal possession of aweapon in the fourth degree, we find that the evidence, when properly weighed, did notestablish that the defendant caused serious physical injury to the victim or that he did soby means of a dangerous instrument.
While a person is guilty of burglary in the first degree when he or she eitherknowingly enters or remains unlawfully in a dwelling with intent to commit a crimetherein (see Penal Law § 140.30), here, the trial court, withoutobjection, erroneously instructed the jury that, in order to find the defendant guilty of thetwo counts of this charge, the People were required to prove that the defendant"unlawfully entered and remained" in the victim's dwelling (emphasis added).Since the People did not object to this erroneous charge, they were "bound to satisfy theheavier burden" (People v Malagon, 50 NY2d 954, 956 [1980]; see People v Singh, 128 AD3d860 [2015]). Given that the evidence demonstrated that the defendant knocked onthe victim's door and announced his presence, and that the victim voluntarily invited thedefendant into the apartment, the People failed to satisfy their burden as to these twocounts.
In light of our determination, we need not address the defendant's remainingcontentions. Mastro, J.P., Austin, Roman and Sgroi, JJ., concur.