People v. Mazariego

• Decision Date: 28 May 2014
• Citation: 986 N.Y.S.2d 235,117 A.D.3d 1082,2014 N.Y. Slip Op. 03863
• Parties: The PEOPLE, etc., respondent, v. Joni MAZARIEGO, appellant.
• Court: New York Supreme Court — Appellate Division

117 A.D.3d 1082

986 N.Y.S.2d 235

2014 N.Y. Slip Op. 03863

The PEOPLE, etc., respondent,

v.Joni MAZARIEGO, appellant.

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

May 28, 2014.

Matthew Muraskin, Port Jefferson, N.Y., for appellant.

Kathleen M. Rice, District Attorney, Mineola, N.Y. (Tammy J. Smiley and Cristin N. Connell of counsel), for respondent.

RUTH C. BALKIN, J.P., THOMAS A. DICKERSON, CHERYL E. CHAMBERS, and L. PRISCILLA HALL, JJ.

Appeal by the defendant from a judgment of the County Court, Nassau County (Sullivan, J.), rendered July 18, 2012, convicting him of manslaughter in the first degree, gang assault in the first degree, and attempted assault in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the defendant's conviction of gang assault in the first degree under count two of the indictment to attempted gang assault in the first degree, and vacating the sentence imposed thereon; as so modified, the judgment is affirmed, and the matter is remitted to the County Court, Nassau County, for sentencing on the conviction of attempted gang assault in the first degree.

In December 2010, John Pareja, Plutarco Galindo, and two friends went to a bar where the defendant was also present with a number of friends. Galindo and Pareja, who were members of Sur Trece gang, engaged in a verbal altercation with the defendant and his friends on the dance floor, during which the defendant's friends displayed hand signals associated with the Mara Salvatrucha, or MS–13, gang. Shortly thereafter, Galindo, Pareja, and their friends left the bar. The defendant and several of his friends followed them, and a physical altercation ensued between the two groups on the sidewalk and street outside the bar. During the altercation, Galindo and Pareja were stabbed. Galindo died from his injuries, while Pareja suffered a cut to the right flank that was approximately three inches deep. Following a jury trial, the defendant was convicted of manslaughter in the first degree, which was charged as a lesser included offense of murder in the second degree, as well as gang assault in the first degree and attempted assault in the second degree.

The defendant challenges his conviction of gang assault in the first degree, asserting that the People failed to present legally sufficient evidence that Pareja suffered a “serious physical injury,” which is defined as “physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ” (Penal Law § 10.00[10] ). Although the defendant failed to preserve for appellate review his legal sufficiency argument in connection with this conviction ( see People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946;CPL 470.05[2] ), we review it as a matter of discretion in the interest of justice. Viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally insufficient to establish the defendant's guilt of gang assault in the first degree beyond a reasonable doubt.

Although Pareja was stabbed in the right flank, his wounds required no stitches, and there was no evidence that he suffered any permanent damage to his kidney, which suffered a small laceration. Moreover, when he was examined, Pareja was oriented and alert, able to converse, and had normal vital signs and blood pressure. Further, the only evidence of protracted disfigurement or impairment of health was that he had a scar, which the jury saw, and that he felt pain on the scar. The record, however, includes no description of the scar or what, if any, limitations Pareja suffered as a result of his injury. Thus, the People failed to adduce legally sufficient evidence that Pareja suffered a “serious physical injury” within the meaning of Penal Law § 10.00(10), which is an element of gang assault in the first degree ( seePenal Law § 120.07; People v. Nimmons, 95 A.D.3d 1360, 1360–1361, 945 N.Y.S.2d 358;People v. Adames, 52 A.D.3d 617, 859 N.Y.S.2d 725).

The evidence was legally sufficient, however, to support a finding that the defendant committed attempted gang assault in the first degree by “engag[ing] in conduct which tend[ed] to effect the commission of” (Penal Law § 110.00) that offense by acting in concert with others, with the intent to cause serious physical injury, even if such injury did not actually occur. The proof adduced at trial was legally sufficient to prove that the defendant came “dangerously near” the commission of the completed crime ( People v. Kassebaum, 95 N.Y.2d 611, 618, 721 N.Y.S.2d 866, ...