People v. Andrews

• Decision Date: 16 April 2015
• Docket Number: 105617.
• Citation: 7 N.Y.S.3d 647,2015 N.Y. Slip Op. 03201,127 A.D.3d 1417
• Parties: The PEOPLE of the State of New York, Respondent, v. Rupert ANDREWS, Appellant.
• Court: New York Supreme Court — Appellate Division

127 A.D.3d 1417

7 N.Y.S.3d 647

2015 N.Y. Slip Op. 03201

The PEOPLE of the State of New York, Respondent

v.Rupert ANDREWS, Appellant.

105617.

Supreme Court, Appellate Division, Third Department, New York.

April 16, 2015.

Ralph Cherchian, Albany, for appellant.

Robert M. Carney, District Attorney, Schenectady (Peter Willis of counsel), for respondent.

Before: PETERS, P.J., GARRY, ROSE and LYNCH, JJ.

Opinion

LYNCH, J.

Appeal from a judgment of the Supreme Court (Milano, J.), rendered September 20, 2012 in Schenectady County, upon a verdict convicting defendant of the crimes 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 third individual, the victim in this case, availed himself of defendant's cash, marihuana and cell phone, 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 victim walked away, he overheard defendant telephone a request that someone “go get the mag,” which the victim believed to mean a gun. Later that evening, the victim returned to the deli and observed defendant and two other men watching him from a nearby apartment 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 individuals come out to the street. The men surrounded the victim, who began fist fighting with defendant. Gun shots rang out and a group of individuals, including the victim, ran away from the site of this first altercation.

Defendant and the victim then continued fighting in an area down the block from the deli and, as defendant held the victim's leg, another man slashed the victim's face with a razor blade. The assailants left the victim bleeding in the street. Eventually, the victim was transported to the hospital, where he received 80 stitches to close the wound. As is relevant to this appeal, defendant was convicted after a jury trial of gang assault in the first degree and attempted assault in the first degree and was sentenced to concurrent prison terms of 15 years with five years of postrelease supervision and 17 years with five years of postrelease supervision, respectively. Defendant now appeals.

Upon review of the evidence presented at trial, we find that the jury's verdict was supported by legally sufficient evidence and was not contrary to the weight of the evidence (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). A conviction for gang 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 or more other persons actually present, ... causes serious physical injury to such person” (Penal Law § 120.07 ; accord People v. Sanchez, 13 N.Y.3d 554, 563, 893 N.Y.S.2d 803, 921 N.E.2d 570 [2009] ). Here, Mark Green, who lived in an apartment near the deli, testified that defendant went to Green's apartment after the victim stole his money, marihuana and phone, and summoned Clarence 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's behest 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 need to fight the victim. Green testified that they saw the victim arrive at the deli and that all four men then went downstairs, but that he stayed on the porch while Stanford, Hemmingway and defendant approached the victim. According to Green, as the victim tried to fight them off, defendant, Stanford and Hemmingway chased the victim down the street, with Stanford firing the gun at the victim as they ran after him. According to the victim, Stanford followed him to the area where defendant caught him and held him as Hemmingway slashed his face.

We reject defendant's argument that the People failed to prove the element that he had been aided by two or more people actually present. We recognize that the incident started in one location with defendant and at least three people present, and that the victim was slashed with the razor blade at a second location approximately one block away. As to the second location, there is conflicting evidence with regard to how many people were present. To conclude that a person was “actually present” during a gang assault (Penal Law § 120.07 ), the proof must demonstrate that he or she was “in the immediate vicinity of the crime, and [was] capable of rendering immediate assistance to an individual committing the crime” (People v. Sanchez, 13 N.Y.3d at 564, 893 N.Y.S.2d 803, 921 N.E.2d 570 ; see People v. Johnson, 107 A.D.3d 1161, 1163–1164, 967 N.Y.S.2d 217 [2013], lv. denied 21 N.Y.3d 1075, 974 N.Y.S.2d 324, 997 N.E.2d 149 [2013] ; People v. Cordato, 85 A.D.3d 1304, 1312, 924 N.Y.S.2d 649 [2011], lv. denied 17 N.Y.3d 815, 954 N.E.2d 94 [2011] ). Here, we find that the evidence was legally sufficient to establish that defendant acted with the aid of two or more people who were actually present because, viewing all the evidence in the light most favorable to the People, we can infer that, at all times, Hemmingway and Stanford were in the immediate vicinity and able to assist defendant in the assault.

Defendant also contends that the People failed to demonstrate that the victim suffered a serious physical injury, a defined element of the crime of gang assault in the first degree (see Penal Law §§ 10.00[10] ; 120.07). Inasmuch as defendant's trial motions to dismiss did not address this specific issue, his challenge to the legal sufficiency of the evidence presented in support of this element is not preserved for our review (see People v. Finger, 95 N.Y.2d 894, 895, 716 N.Y.S.2d 34, 739 N.E.2d 290 [2000] ; People v. Junior, 119 A.D.3d 1228, 1229, 990 N.Y.S.2d 689 [2014], lv. denied 24 N.Y.3d 1044, 998 N.Y.S.2d 314, 23 N.E.3d 157 [2014] ). Nevertheless, we evaluate the adequacy of the evidence as to each element of the crime as part of our weight of the evidence review (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ; People v. Junior, 119 A.D.3d at 1229, 990 N.Y.S.2d 689 ; People v. Johnson, 107 A.D.3d at 1163 n. 2, 967 N.Y.S.2d 217 ).

A “serious ... disfigurement” qualifies as a serious physical injury if it is “objectively distressing or objectionable” (People v. Stewart, 18 N.Y.3d 831, 832, 939 N.Y.S.2d 273, 962 N.E.2d 764 [2011] [internal quotation marks and citation...