People v. Varughese

• Decision Date: 26 September 2005
• Docket Number: 2003-11256.,2003-11254.,2003-11253.
• Citation: 2005 NY Slip Op 06953,801 N.Y.S.2d 415,21 A.D.3d 1126
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. LENNY VARUGHESE, STANLEY VARUGHESE and ASHISH SHAH, Appellants.
• Court: New York Supreme Court — Appellate Division

21 A.D.3d 1126

801 N.Y.S.2d 415

2005 NY Slip Op 06953

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v.LENNY VARUGHESE, STANLEY VARUGHESE and ASHISH SHAH, Appellants.

2003-11253.

2003-11254.

2003-11256.

Appellate Division of the Supreme Court of the State of New York, Second Department.

September 26, 2005.

Appeals by (1) the defendant Lenny Varughese from a judgment of the Supreme Court, Queens County (Rios, J.), rendered November 25, 2003, convicting him of gang assault in the first degree (two counts), assault in the first degree (five counts), criminal mischief in the third degree, and criminal possession of a weapon in the fourth degree, (2) the defendant Stanley Varughese from a judgment of the same court also rendered November 25, 2003, convicting him of gang assault in the first degree (two counts), assault in the first degree (five counts), criminal mischief in the third degree, and criminal possession of a weapon in the fourth degree, and (3) the defendant Ashish Shah from a judgment of the same court also rendered November 25, 2003, convicting him of gang assault in the first degree (two counts), assault in the second degree, attempted assault in the second degree, and criminal possession of a weapon in the fourth degree, upon jury verdicts, and imposing sentences.

Ordered that the judgments are affirmed.

The defendants contend that the Legislature intended the gang assault statute(seePenal Law § 120.07) to apply exclusively to group attacks on lone or helpless victims, and that it should therefore not be applied to the instant case, which involved a clash between groups of roughly equivalent numbers.As a preliminary matter, we note that this contention was not preserved for appellate review (seeCPL 470.05 [2]).In any event, we find the contention to be without merit.There is no ambiguity in the plain language of the statute that would suggest prosecution thereunder is precluded in cases such as this (seePenal Law § 120.07;cf.Matter of Tompkins County Support Collection Unit v. Chamberlin,99 NY2d 328, 335[2003];Hudson Val. Oil Heat Council, Inc. v. Town of Warwick,7 AD3d 572, 574[2004]).Legislative intent is relevant and should not be ignored, even where the language of the statute appears to be clear (seeMatter of Tompkins County Support Collection Unit v. Chamberlin, supra).However, the evidence of the Legislature's intent submitted by the defendants was insufficient to establish that it intended the gang assault statute to be applied exclusively to cases of group assaults on lone or helpless victims.

The defendants' contention that they were denied a fair trial because the Supreme Court declined to charge the jury on justification is without merit.Where no reasonable view of the evidence establishes the elements of a justification defense, a court need not instruct the jury on justification (seePeople v. Reynoso,73 NY2d 816, 818[1988];People v. Watts,57 NY2d 299, 301[1982];People v. Plowden,5 AD3d 609[2004];cf.People v. Gavigan,2 AD3d 748[2003]).We agree with the Supreme Court that no reasonable view of the evidence adduced at trial established the elements of justification (seePeople v. Reynoso, supra;People v. Watts, supra;People v. Plowden, supra;cf.People v. Gavigan, supra).

The defendants' contention that the court's charge on interested witnesses was unbalanced is also without merit.The charge was properly balanced, as the court instructed the jury that the defendants were interested witnesses, and that the jury was free to find that any witnesses, including the prosecution's witnesses, were interested (seePeople v. Lopez,1 AD3d 458, 459[2003]).Moreover, although the court's charge did not note that several prosecution witnesses were interested in that they had filed civil suits against the defendants and stood to gain financially from the defendants' convictions (cf.People v. Panetta,250 AD2d 710, 712[1998]), there was ample evidence of the complainants' civil lawsuits before the jury (seePeople v. Smith,240 AD2d 600, 601[1997]).Additionally, the jury was charged to consider the witnesses' "relationship to the case and the motive[s][the] witness[es] may have for testifying truthfully or falsely"(People v. Smith, supra at 601).

The defendantAshish Shah contends that the People failed to prove he was "actually present" within the meaning of the gang assault statute(seePenal Law § 120.07).This claim is also unpreserved for appellate review (seeCPL 470.05 [2]).In any event, viewing the evidence in the light most favorable to the...