People v. Tucker

• Decision Date: 12 January 2012
• Citation: 936 N.Y.S.2d 386,2012 N.Y. Slip Op. 00136,91 A.D.3d 1030
• Parties: The PEOPLE of the State of New York, Respondent, v. Darryl G. TUCKER, Appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 00136
91 A.D.3d 1030
936 N.Y.S.2d 386

The PEOPLE of the State of New York, Respondent,
v.
Darryl G. TUCKER, Appellant.

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

Jan. 12, 2012.

[936 N.Y.S.2d 387]

Alfred O'Connor, New York State Defenders Association, Albany, for appellant.

Nicole M. Duve, District Attorney, Canton (Jonathan L. Becker of counsel), for respondent.

Before: MERCURE, Acting P.J., ROSE, LAHTINEN, KAVANAGH and McCARTHY, JJ.

McCARTHY, J.

[91 A.D.3d 1030] Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered July 20, 2009, upon a verdict convicting defendant of the crimes of gang assault in the first degree, gang assault in the second degree, assault in the first degree and assault in the second degree.

The victim was walking with several other college students when they were confronted by defendant and his codefendants, Roody Dorfeuille and Jevaughn Francis. Dorfeuille punched the victim in the chest, defendant punched him in the face and Francis kicked the victim in the head as he fell. Defendant and Dorfeuille continued to hit the victim while he was on the ground. When the assault ended, the victim realized that he had been stabbed.

A seven-count indictment charged all three defendants with attempted murder and gang assault and assault in the first and [91 A.D.3d 1031] second degrees. A jury found defendant and Dorfeuille ¹ guilty of gang assault in the first and second degrees and assault in the first and second degrees, and found Francis guilty of assault in the second degree.² County Court sentenced defendant to concurrent terms of 12 years in prison followed by five years of postrelease supervision for both gang assault in the first degree and assault in the first degree, seven years followed by five years of postrelease supervision for gang assault in the second degree, and seven years followed by three years of postrelease supervision for assault in the second degree. Defendant appeals.

Initially, as the People concede, gang assault in the second degree is a lesser included offense of gang assault in the first degree, and assault in the second degree is a lesser included offense of assault in the first degree. Hence, County Court should have submitted the lesser included counts to the jury in the alternative ( see CPL 300.40[3][b]; 300.50[4] ). After the verdict was rendered, County Court should have dismissed the counts charging lesser included offenses. Accordingly, although no party raised this issue before the trial court, we now dismiss those counts in the interest of justice ( see People v. Horton, 46 A.D.3d 1225, 1228, 850 N.Y.S.2d 650 [2007], lv. denied 10 N.Y.3d 766, 854 N.Y.S.2d 328, 883 N.E.2d 1263 [2008] ).

[2] The evidence was legally insufficient to prove that the victim suffered a serious physical injury. That term—an element of assault in the first degree and gang assault in the first and second degrees ( see Penal Law §§ 120.06, 120.07, 120.10[1] )—is defined as a...