| People v Chavez |
| 2016 NY Slip Op 04069 [139 AD3d 1082] |
| May 25, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Emmanuel Chavez, Appellant. |
Lynn W. L. Fahey, New York, NY (Lauren E. Jones of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano,Johnnette Traill, and Jonathan K. Yi of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Zayas, J.), rendered March 19, 2012, convicting him of gang assault in the seconddegree, 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, Queens County, for further proceedingsconsistent with CPL 160.50.
During a fight that occurred on a Queens street on September 21, 2009, thecomplainant was slashed twice in the face, while the defendant, his codefendant, and anuncharged person were present. The defendant was charged with two counts of assault inthe first degree, criminal possession of a weapon in the third degree, and gang assault inthe second degree, and the codefendant was charged with gang assault in the seconddegree and assault in the third degree. The testimony at trial indicated that during thefight, the victim was not sure who slashed him. Afterwards, the victim made inconsistentstatements as to the identity of the slasher, and various witnesses gave conflictingaccounts as to whether the defendant was involved in the fight or was a mere bystander.The jury convicted the defendant of gang assault in the second degree and acquitted himof the other charged offenses. The codefendant was acquitted of all charges.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establishthe defendant's guilt of gang assault in the second degree beyond a reasonable doubt(see Penal Law § 120.06; People v Danielson, 9 NY3d 342, 349 [2007]; People vBleakley, 69 NY2d 490, 495 [1987]; People v Washington, 31 AD3d 795, 795 [2006]). Contraryto the defendant's contention, the jury's acquittal of him on the counts of assault in thefirst degree and criminal possession of a weapon in the third degree does not establishthat the evidence was legally insufficient to support his conviction on the count of gangassault in the second degree (seePeople v Nunez, 82 AD3d 1128, 1129 [2011]; People v Ariza, 77 AD3d844, 846 [2010]). Similarly, the acquittal of the codefendant on the count of gangassault in the second degree did not require the defendant's acquittal on that charge (see People v Mynin, 58 AD3d581, 582 [2009], affd sub nom. People v Sanchez, 13 NY3d 554 [2009]; People v Fowler, 31 AD3d784, 785 [2006]).
[*2] However, upon theexercise of our factual review power (see CPL 470.15) we conclude that theverdict convicting the defendant of gang assault in the second degree was against theweight of the evidence. "[W]eight of the evidence review requires a court first todetermine whether an acquittal would not have been unreasonable. If so, the court mustweigh conflicting testimony, review any rational inferences that may be drawn from theevidence and evaluate the strength of such conclusions. Based on the weight of thecredible evidence, the court then decides whether the jury was justified in finding thedefendant guilty beyond a reasonable doubt" (People v Danielson, 9 NY3d at348).
While weight of the evidence review does not require that we ascertain the basis forany implied inconsistencies in a jury verdict (see People v Rayam, 94 NY2d 557,562 [2000]), we may consider an acquittal on a particular count in performing our weightof the evidence review (seePeople v Samuels, 130 AD3d 757, 759 [2015]; People v Johnson, 110 AD3d920, 921 [2013]; People vSmall, 109 AD3d 842, 843 [2013]; People v Fisher, 104 AD3d 868, 869 [2013]; People v Lindsey, 52 AD3d527, 529 [2008]). Here, given the jury's acquittal of the defendant on both counts ofassault in the first degree and the count of criminal possession of a weapon in the thirddegree, and in light of the inconsistent accounts regarding the defendant's involvement inthe incident and the identity of the slasher, we find that the evidence, when properlyweighed, did not establish beyond a reasonable doubt that the defendant, as either aprincipal or an accessory, caused serious physical injury to the victim or that he did so bymeans of a dangerous instrument (see People v Samuels, 130 AD3d at 759).
In light of our determination, we do not address the defendant's remainingcontentions. Mastro, J.P., Chambers, Dickerson and Connolly, JJ., concur.