Opinion
No. 2923.
June 1, 2010.
Judgment, Supreme Court, New York County (Roger S. Hayes, J.), rendered May 3, 2007, as amended May 10, 2007, convicting defendant, after a jury trial, of gang assault in the second degree, and sentencing him to a term of nine years, unanimously affirmed.
Mischel Horn, P.C., New York (Richard E. Mischel of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Gina Mignola of counsel), for respondent.
Before: Mazzarelli, J.P., McGuire, DeGrasse, Freedman and Richter, JJ.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence ( see People v Danielson, 9 NY3d 342, 348-349). There is no basis for disturbing the jury's credibility determinations and its rejection of defendant's justification defense. Defendant's arguments concerning the element of being "aided by two or more other persons actually present" (Penal Law § 120.06) are similar to arguments that were rejected on a codefendant's appeal ( People v Sanchez, 57 AD3d 1, affd 13 NY3d 554), and there is no reason to reach a different result.
Defendant did not preserve his challenge to the court's response to a jury note asking whether a factual scenario posited in the note could constitute gang assault, and we decline to review it in the interest of justice. As an alternative holding, we find that the court correctly stated the law ( see Sanchez, 13 NY3d at 566-567), and appropriately responded to the jury's concern.
Defendant's challenges to the court's justification charge are also unpreserved, and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal.
We perceive no basis for reducing the sentence.