People v. Junior

• Citation: 2014 N.Y. Slip Op. 05463,990 N.Y.S.2d 689,119 A.D.3d 1228
• Parties: The PEOPLE of the State of New York, Respondent, v. Amin JUNIOR, Appellant.
• Decision Date: 24 July 2014
• Court: New York Supreme Court Appellate Division

119 A.D.3d 1228

990 N.Y.S.2d 689

2014 N.Y. Slip Op. 05463

The PEOPLE of the State of New York, Respondent,

v.Amin JUNIOR, Appellant.

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

July 24, 2014.

Donna Maria Lasher, Youngsville, for appellant.

James R. Farrell, District Attorney, Monticello (Meagan K. Galligan of counsel), for respondent.

Before: LAHTINEN, J.P., McCARTHY, GARRY, LYNCH and CLARK, JJ.

CLARK, J.

Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered January 3, 2012, upon a verdict convicting defendant of the crimes of gang assault in the second degree, assault in the second degree and criminal possession of a weapon in the third degree.

In September 2010, defendant, the victim and at least two other men were involved in a physical altercation at a bar, during which the victim's face, neck and head were cut by a piece of broken glass, requiring more than 40 stitches. The victim later developed a blood clot, requiring him to go to the hospital daily to have the laceration on his cheek—which was several inches long—packed with medicated gauze. As a result, defendant was charged in an indictment with gang assault in the second degree, assault in the second degree and criminal possession of a weapon in the third degree. Following a combined Wade/Huntley hearing, County Court denied defendant's motion to suppress his statements to police and his identification in a photo array by the bartender. Thereafter, the court denied his motion to preclude introduction of surveillance video from the bar. The matter proceeded to trial, at the close of which defendant was convicted as charged and sentenced to an aggregate prison term of five years to be followed by five years of postrelease supervision. Defendant now appeals.

We affirm. Initially, we reject defendant's challenge to the legal sufficiency of the evidence and his assertion that the verdict is against the weight of the evidence. Defendant argues that there is no evidence to establish that he participated in any activity, aside from a single punch, that resulted in injury to the victim. In particular, he maintains that the People failed to prove that he intended to cause physical injury to the victim and was aided by two or more persons actually present, elements of gang assault in the second degree ( seePenal Law § 120.06). Defendant further asserts that the People failed to prove that he acted in concert with anyone—i.e., that, with the requisite mental culpability for the commission of gang assault in the second degree, he “solicit[ed], request[ed], command[ed], importune[d], or intentionally aid[ed]” another—such that the gang assault charge could be sustained under a theory of accessorial liability (Penal Law § 20.00; see People v. Sanchez, 13 N.Y.3d 554, 567, 893 N.Y.S.2d 803, 921 N.E.2d 570 [2009] ). Similarly, defendant asserts that the People failed to prove that he acted in concert with anyone in causing physical injury by means of a dangerous weapon or in possessing a dangerous weapon with the intent to use it unlawfully against another person, elements of accessorial liability for assault in the second degree and criminal possession of a weapon in the third degree as charged to the jury without objection ( seePenal Law §§ 20.00, 120.05 [2]; 265.01[2]; 265.02[1] ).¹

We note that, apart from defendant's specific objection that the People failed to prove that he had acted in concert with anyone, defendant made only a general motion to dismiss the charges against him. Thus, his challenge to the legal sufficiency of the evidence is largely unpreserved 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];see also People v. Finch, 23 N.Y.3d 408, ––––, 2014 N.Y. Slip Op. 03424, *4–5 [2014] ). Nevertheless, we necessarily consider whether all of the elements of the charged crimes were proven beyond a reasonable doubt in resolving defendant's assertion that the verdict was against the weight of the evidence, a claim that does not require preservation ( see People v. Thomas, 105 A.D.3d 1068, 1069–1070, 962 N.Y.S.2d 756 [2013],lv. denied21 N.Y.3d 1010, 971 N.Y.S.2d 262, 993 N.E.2d 1286 [2013];People v. Townsend, 94 A.D.3d 1330, 1330 n. 1, 943 N.Y.S.2d 276 [2012],lv. denied19 N.Y.3d 1105, 955 N.Y.S.2d 561, 979 N.E.2d 822 [2012] ).²

The victim's testimony here established that defendant, who was in a romantic relationship with the mother of the victim's child, became upset because he believed that the victim was lying about him to a mutual friend. The victim stated that defendant and two men whom he did not know arrived at the bar on the night in question and, while the victim was speaking to the mutual friend, one of the men first stood near them and then sat with defendant at the bar. Both the victim and the bartender testified that defendant and the two men subsequently left the bar briefly, and reentered through a side door near the victim. Defendant confronted the victim and, after they exchanged words, all three men attacked the victim, with defendant first punching him in the face. The victim indicated that he was hit from the right side with a bottle and from the left side with a glass; the bartender testified that she heard the sound of breaking glass and saw the victim emerge from the brawl appearing bloody. In addition, the owner of the bar testified for the purpose of admitting into evidence surveillance footage, which showed the confrontation, with the two unknown assailants standing on either side of the victim and defendant lunging toward the victim, starting the fight in motion.

“Based on the weight of the credible evidence,” we conclude that “the jury was justified in finding the defendant guilty beyond a reasonable doubt” ( People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007];accord People v. Kancharla 23 N.Y.3d 294, ––––, 2014 N.Y. Slip Op. 03295, *5 [2014];see People v. Sanchez, 13 N.Y.3d at 566–567, 893 N.Y.S.2d 803, 921 N.E.2d 570;People v. Torres, 108 A.D.3d 474, 475, 969 N.Y.S.2d 462 [2013],lv. denied22 N.Y.3d 998, 981 N.Y.S.2d 4, 3 N.E.3d 1172 [2013];People v. Gholam, 99 A.D.3d 441, 442, 951 N.Y.S.2d 526 [2012],lv. denied20 N.Y.3d 1061, 962 N.Y.S.2d 612, 985 N.E.2d 922 [2013];cf. People v. Chardon, 83 A.D.3d 954, 956–957, 922 N.Y.S.2d 127 [2011],lv. denied18 N.Y.3d 857, 938 N.Y.S.2d 865, 962 N.E.2d 290 [2011] ). That is, although a different result would not have been unreasonable, the verdict was supported by the weight of the evidence. Defendant's assertions that he did not know the two other assailants and that he was merely trying to break up the fight presented an issue of credibility that was appropriately resolved by the jury. According deference to that determination and viewing the evidence in a neutral light ( see People v. Perry, 116 A.D.3d 1253, 1255, 983 N.Y.S.2d 699 [2014];People v. Tubbs, 115 A.D.3d 1009, 1010, 981 N.Y.S.2d 830 [2014] ), we conclude that defendant's convictions are not against the weight of the evidence.

Defendant's remaining arguments do not require extended discussion. His assertion that County Court failed to adequately set forth its findings of fact, conclusions of law and the reasons therefore on the record at the close of the suppression hearing was not preserved for this Court's review ( see People v. Perez, 89 A.D.3d 1393, 1395, 932 N.Y.S.2d 628 [2011],lv. denied18 N.Y.3d 961, 944 N.Y.S.2d 489, 967 N.E.2d 714 [2012] ), and reversal in the interest of justice is unwarranted inasmuch as the argument lacks merit ( see People v. Pagan, 103 A.D.3d 978, 979, 962 N.Y.S.2d 372 [2013],lv. denied21 N.Y.3d 1018, 971 N.Y.S.2d...