| People v Guerrero |
| 2017 NY Slip Op 03772 [150 AD3d 883] |
| May 10, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Heriberto Guerrero, Appellant. |
David Louis Cohen, Kew Gardens, NY, for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Diane R.Eisner of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Chun, J.),rendered September 2, 2015, convicting him of assault in the first degree, gang assault in the firstdegree, and criminal possession of a weapon in the fourth degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is affirmed.
The defendant's convictions stem from an incident that occurred on June 4, 2012, in ConeyIsland, Brooklyn. During the incident, one person, Angel Reyes, sustained a stab wound to hisneck which cut an artery, and another person, Jose Herrera, also known as Pica, was killed as aresult of blunt impact injuries to his head and stab wounds to his torso. After a jury trial, thedefendant was convicted of assault in the first degree and gang assault in the first degree as toReyes, and criminal possession of a weapon in the fourth degree. A codefendant at trial wasconvicted of murder in the second degree as to Pica, attempted murder in the second degree as toReyes, and gang assault in the first degree. Two unidentified individuals who also were allegedto be involved in the incident were not apprehended.
Contrary to the defendant's contention, the evidence was legally sufficient to establishbeyond a reasonable doubt his guilt of assault in the first degree and gang assault in the firstdegree, based on an acting-in-concert theory (see Penal Law §§ 20.00,120.07, 120.10 [1]). "The statutory definition of accessory liability provides that '[w]hen oneperson engages in conduct which constitutes an offense, another person is criminally liable forsuch conduct when, acting with the mental culpability required for the commission thereof, hesolicits, requests, commands, importunes, or intentionally aids such person to engage in suchconduct' " (People vCarpenter, 138 AD3d 1130, 1131 [2016], quoting Penal Law § 20.00; see People v Scott, 25 NY3d 1107,1110 [2015]). "Inasmuch as the statute requires that the accomplice act with the mentalculpability required for the commission of the underlying crime, an accomplice must have ashared intent, or 'community of purpose' with the principal" (People v Carpenter, 138AD3d at 1131, quoting People v Cabey, 85 NY2d 417, 421 [1995]; see People vScott, 25 NY3d at 1110).
Here, viewed in the light most favorable to the People, the evidence was legally [*2]sufficient to support the conviction of assault in the first degree, asit established beyond a reasonable doubt that the defendant shared his companions' intent tocause serious physical injury to Reyes by means of a deadly weapon or a dangerous instrument(see Penal Law §§ 20.00, 120.10 [1]; People v Smith, 302AD2d 615, 616 [2003]; see also People v Scott, 25 NY3d at 1110; People vAllah, 71 NY2d 830, 831-832 [1988]). The evidence was also legally sufficient to supportthe conviction of gang assault in the first degree, as there was evidence that the defendant and theothers attacking Pica were sufficiently close to the assault on Reyes that they were capable ofrendering immediate assistance, and therefore "actually present" as required by Penal Law§ 120.07 (see People vSanchez, 13 NY3d 554, 563-567 [2009]; People v Andrews, 127 AD3d 1417, 1419 [2015]).
There was testimony that the defendant and three companions exited a vehicle with weaponswhich were visible to the witnesses present; the defendant held a metal pipe and a bottle and hiscompanions had knives. The evidence further demonstrated that the defendant led the other caroccupants in chasing the victims and their group on foot through the street. During the rapidlyunfolding incident, the defendant joined two of his cohorts who were already attacking Pica withknives, as the fourth member of their group attacked Reyes with a knife. The entire incidentlasted approximately two minutes and the attacks on Pica and Reyes occurred within closeproximity, in a street approximately 32 feet wide.
The totality of the evidence demonstrates that the defendant knowingly participated andcontinued to participate in an attack on the victims—including Reyes—even afterhis companions' intentions in using their knives were evident (see People v Sanchez, 13NY3d at 566; People v Allah, 71 NY2d at 831-832; Matter of Tatiana N., 73 AD3d 186, 191 [2010]). Thus, theevidence was legally sufficient to establish the defendant's guilt of assault in the first degree andgang assault in the first degree as to Reyes. Moreover, upon our independent review pursuant toCPL 470.15 (5), we are satisfied that the verdict of guilt as to each crime was not against theweight of the evidence (see People vRomero, 7 NY3d 633 [2006]).
The defendant's acquittal of the charges of murder in the second degree as to Pica andattempted murder in the second degree as to Reyes does not change our conclusion; the juryrationally could have found insufficient proof that the defendant intended to cause the death ofeither Pica or Reyes but that there was evidence beyond a reasonable doubt that the defendant,who possessed a pipe and bottle, acted in concert with the other perpetrators, each of whom had aweapon, to cause serious physical injury to Reyes (see People v Abraham, 22 NY3d 140, 147 [2013]; People v Ellis, 133 AD3d 777, 778[2015]).
Contrary to the defendant's contention, the evidence regarding his membership in a gang andthe rivalries between Pica's gang and his gang was relevant to the issue of the defendant's motiveand to explain the relationship among the parties (see People v Bruno, 127 AD3d 986, 986 [2015]; People v Guevara, 96 AD3d 781,781 [2012]). Since the probative value of this evidence outweighed any prejudice to thedefendant, the Supreme Court providently exercised its discretion in permitting the People topresent such evidence (see People vGonzales-Martinez, 136 AD3d 651, 652 [2016]; People v Bruno, 127 AD3d at986; People v Guevara, 96 AD3d at 781-782).
Although the Supreme Court improperly modified its Sandoval ruling (see Peoplev Sandoval, 34 NY2d 371 [1974]) by permitting the prosecutor to cross-examine thedefendant about an assault in May 2011, the error was harmless. Evidence of the defendant's guiltof each of the crimes of which he was convicted, without reference to the error, wasoverwhelming, and there is no significant probability that the error contributed to the conviction(see People v Crimmins, 36 NY2d 230, 241-242 [1975]; People v Wongsam, 105 AD3d980, 981-982 [2013]; People vSeabrooks, 82 AD3d 1130, 1130-1131 [2011]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's remaining contentions are unpreserved for appellate review and, in anyevent, without merit (see CPL 470.05 [2]; People v McDonald, 131 AD3d 1268, 1269 [2015]; People v Licausi, 122 AD3d 771,773 [2014]). Mastro, J.P., Chambers, Maltese and Duffy, JJ., concur.
Motion by the respondent to strike Point VI of the appellant's brief on an appeal from ajudgment of the Supreme Court, Kings County, rendered September 2, 2015. By decision andorder on motion of this Court dated August 26, 2016, the motion was held in abeyance andreferred to the panel of Justices hearing the appeal for determination upon the argument orsubmission thereof.
Upon the papers filed in support of the motion and no papers having been filed in oppositionor in relation thereto, and upon the argument of the appeal, it is
Ordered that the motion is granted, and Point VI of the appellant's brief is deemed strickenand has not been considered in the determination of the appeal.