People v. Guerrero

• Decision Date: 10 May 2017
• Citation: 55 N.Y.S.3d 67,150 A.D.3d 883
• Parties: The PEOPLE, etc., respondent, v. Heriberto GUERRERO, appellant.
• Court: New York Supreme Court — Appellate Division

150 A.D.3d 883
55 N.Y.S.3d 67

The PEOPLE, etc., respondent,
v.
Heriberto GUERRERO, appellant.

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

May 10, 2017.

55 N.Y.S.3d 69

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.

WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, JOSEPH J. MALTESE, and COLLEEN D. DUFFY, JJ.

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 first degree, and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's convictions stem from an incident that occurred on June 4, 2012, in Coney Island, Brooklyn. During the incident, one person, Angel Reyes, sustained a stab wound to his neck which cut an artery, and another person, Jose Herrera, also known as Pica, was killed as a result of blunt impact injuries to his head and stab wounds to his torso. After a jury trial, the defendant was convicted of assault in the first degree and gang assault in the first degree as to Reyes, and criminal possession of a weapon in the fourth degree. A codefendant at trial was convicted of murder in the second degree as to Pica, attempted murder in the second degree as to Reyes, and gang assault in the first degree. Two unidentified individuals who also were alleged to be involved in the incident were not apprehended.

Contrary to the defendant's contention, the evidence was legally sufficient to establish beyond a reasonable doubt his guilt of assault in the first degree and gang assault in the first degree, 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 one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct’ " (People v. Carpenter, 138 A.D.3d 1130, 1131, 30 N.Y.S.3d 299, quoting Penal Law § 20.00 ; see People v. Scott, 25 N.Y.3d 1107, 1110, 14 N.Y.S.3d 308, 35 N.E.3d 476 ). "Inasmuch as the statute requires that the accomplice act with the mental culpability required for the commission of the underlying crime, an accomplice must have a shared intent, or ‘community of purpose’ with the principal"

55 N.Y.S.3d 70

(People v. Carpenter, 138 A.D.3d at 1131, 30 N.Y.S.3d 299, quoting People v. Cabey, 85 N.Y.2d 417, 421, 626 N.Y.S.2d 20, 649 N.E.2d 1164 ; see People v. Scott, 25 N.Y.3d at 1110, 14 N.Y.S.3d 308, 35 N.E.3d 476 ).

Here, viewed in the light most favorable to the People, the evidence was legally sufficient to support the conviction of assault in the first degree, as it established beyond a reasonable doubt that the defendant shared his companions' intent to cause 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, 302 A.D.2d 615, 616, 756 N.Y.S.2d 255 ; see also People v. Scott, 25 N.Y.3d at 1110, 14 N.Y.S.3d 308, 35 N.E.3d 476 ; People v. Allah, 71 N.Y.2d 830, 831–832, 527 N.Y.S.2d 731, 522 N.E.2d 1029 ). The evidence was also legally sufficient to support the conviction of gang assault in the first degree, as there was evidence that the defendant and the others attacking Pica were sufficiently close to the assault on Reyes that they were capable of rendering immediate assistance, and therefore "actually present" as required by Penal Law § 120.07 (see People v. Sanchez, 13 N.Y.3d 554, 563–567, 893 N.Y.S.2d 803, 921 N.E.2d 570 ; People v. Andrews, 127 A.D.3d 1417, 1419, 7 N.Y.S.3d 647 ).

There was testimony that the defendant and three companions exited a vehicle with weapons which were visible to the witnesses present; the defendant held a metal pipe and a bottle and his companions had...