| People v Montanez |
| 2017 NY Slip Op 00925 [147 AD3d 444] |
| February 7, 2017 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Christopher Montanez, Appellant. The People of the State of New York,Respondent, v Andrew McCray, Appellant. The People of the State of New York, Respondent, vMartrell Terrell, Appellant. |
Sheila Samuels, Mount Vernon, for Christopher Montanez, appellant.
Richard M. Greenberg, Office of the Appellate Defender, New York (Rosemary Herbert ofcounsel), and Freshfields Bruckhaus Deringer US LLP, New York (Shannon M. Leitner ofcounsel), for Andrew McCray, appellant.
Seymour W. James, Jr., The Legal Aid Society, New York (David Crow and Ursula Benteleof counsel), and Patterson Belknap Webb & Tyler LLP, New York (Zachary M. Vaughan ofcounsel), for Martrell Terrell, appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Nicole Coviello of counsel), forrespondent.
Judgments, Supreme Court, New York County (Marcy L. Kahn, J.), rendered April 5, 2013,after a jury trial, convicting defendant Montanez of gang assault in the second degree and assaultin the third degree, and sentencing him, as a second felony offender, to an aggregate term of eightyears, convicting defendant McCray of gang assault in the second degree and assault in thesecond degree, and sentencing him, as a second violent felony offender, to an aggregate term of15 years, and convicting defendant Terrell of gang assault in the first degree and assault in thefirst degree, and sentencing him to an aggregate term of 15 years, unanimously affirmed.
Each verdict was based on legally sufficient evidence and was not against the weight of theevidence, and we find that defendants' various arguments to the contrary are unavailing (see People v Danielson, 9 NY3d342, 348-349 [2007]). The evidence amply established that each defendant acted with therequisite intent and community of purpose with the other defendants as [*2]well as unapprehended assailants, regardless of which of theparticipants had any connection with each other before the incident. Therefore, each defendantwas accessorially liable for the acts of all the participants in the attack on the victim (seePenal Law § 20.00; Matterof Tatiana N., 73 AD3d 186, 191 [1st Dept 2010]).
The court correctly declined defendant McCray's request for submission of assault in thethird degree as a lesser included offense, because there was no reasonable view of the evidence,viewed most favorably to McCray, under which he took part in the attack but did not use or act inconcert with anyone who used a dangerous instrument (see People v Rivera, 23 NY3d 112, 120-121 [2014]), particularlygiven a videotape of the the incident and McCray's own testimony.
We reject defendant Montanez's argument that the court should have granted an adjournmentof opening statements after the prosecutor informed the court and counsel that additional medicalrecords regarding the victim would be produced by the hospital, and we likewise rejectMontanez's argument that the court should have granted a mistrial after the records had beenproduced (see generally People v Ortiz, 54 NY2d 288, 292 [1981]). The defense wasalready well aware that the prosecution's evidence would indicate that the victim sufferedpermanent hearing loss in his left ear, and Montanez has failed to demonstrate that he wasprejudiced by the delay in disclosure.
Likewise, contrary to Montanez's contention, the court providently exercised its discretion indenying mistrial motions in connection with allegedly inflammatory publicity about the case thatappeared during deliberations, or based on allegedly inflammatory and prejudicial commentsmade during the summation of counsel for McCray. In the first instance, the court engaged in anappropriate inquiry of the jurors, which elicited that they had not been exposed to the coverage atissue (see People v Williams, 78AD3d 160, 167 [1st Dept 2010], lv denied 16 NY3d 838 [2011]). In the latter, thecourt gave a curative instruction that appropriately addressed any alleged danger of prejudicefrom the other lawyer's remarks (see People v Santiago, 52 NY2d 865 [1981]).
The court correctly declined to deliver a missing witness charge, because the People made adetailed showing of their reasonable but unsuccessful efforts to locate the witness, therebydemonstrating a "genuine inability to locate [the] witness" (People v Savinon, 100 NY2d192, 198 [2003]).
Defendant Montanez did not preserve his argument that a supplemental instructionimpermissibly directed the jury to draw a mandatory inference of intent, or his repugnant verdictsclaim, and we decline to review either of them in the interest of justice. As an alternative holding,we find both claims to be without merit. Montanez's ineffective assistance of counsel claims areunreviewable on direct appeal because they involve matters not reflected in, or fully explainedby, the record (see People v Rivera, 71 NY2d 705, 709 [1988]; People v Love, 57NY2d 998 [1982]). Accordingly, since Montanez has not made a CPL 440.10 motion, the meritsof his ineffectiveness claims may not be addressed on appeal. In the alternative, to the extent theexisting record permits review, we find that he received effective assistance under the state andfederal standards (see People v Benevento, 91 NY2d 708, 713-714 [1998]; Stricklandv Washington, 466 US 668 [1984]).
We perceive no basis for reducing any of the sentences. Concur—Tom, J.P., Renwick,Saxe, Feinman and Gesmer, JJ.