Opinion
June 16, 1998
Appeal from the Supreme Court, New York County (Daniel FitzGerald, J.).
The verdict was based on legally sufficient evidence and was not against the weight of the evidence. The fact that no witness could conclusively identify defendant as the assailant who initially hit the victim, knocking him to the ground, is of no moment since defendant's guilt was based upon an acting in concert theory and the evidence clearly established that all three participants shared the requisite intent for second degree assault by collectively beating the victim with wooden planks ( People v. Rosario, 199 A.D.2d 92, 93, lv denied 82 N.Y.2d 930). As we decided upon codefendant Fontanez's appeal ( People v. Fontanez, 247 A.D.2d 260), we see no reason to disturb the jury's determinations.
Defendant's challenges to the court's supplemental instructions regarding shared intent and accomplice liability are not preserved for appellate review, and we decline to review them in the interest of justice. Were we to review these claims, we would find that the court's instructions as a whole, including its use of a hypothetical, conveyed the proper legal principles and were not confusing.
Defendant's remaining contentions are unpreserved for failure to object or for lack of specific objection ( see, People v. Tevaha, 84 N.Y.2d 879, 881), and we decline to review them in the interest of justice. Were we to review these claims, we would find, as we did with similar claims raised by Fontanez ( People v. Fontanez, 247 A.D.2d 260, supra), that reversal is not warranted. The court's instructions prevented any prejudice to defendant.
Concur — Rosenberger, J. P., Ellerin, Nardelli and Wallach, JJ.