Opinion
December 14, 1993
Appeal from the Supreme Court, New York County (Juanita Bing Newton, J.).
Defendants' convictions arise from a senseless and brutal attack on three unarmed victims in Greenwich Village. Defendant Casino emerged from a station wagon with bat in hand and after exchanging aggressive words with the victims, tapped the bat on the station wagon at which point the other defendants and a co-defendant, Lukaj emerged. All of the defendants surrounded the victims and then Lukaj took the bat from Casino and began to assault one of the victims by striking him in the head with the baseball bat. Following this initial use of the baseball bat, all of the defendants, in various degrees, assaulted the victims. These assaults were observed by a cab driver who testified at trial that all five of the men who emerged from the station wagon engaged in the assaults.
We reject defendants' claim that the assault first degree conviction may not stand because the evidence was legally insufficient to show that they acted in concert with Lukaj when he struck the most seriously injured victim with a baseball bat. Viewing the evidence in the light most favorable to the People (People v Contes, 60 N.Y.2d 620), guilt was established beyond a reasonable doubt. All of the defendants surrounded the victims while one defendant held a bat and taunted one of the victims with it. That Lukaj was actually the one who used the bat does not negate the evidence demonstrating a community of purpose (compare, People v Rivera, 176 A.D.2d 510, lv denied 79 N.Y.2d 863). Nor do we find the verdicts against the weight of the evidence (People v Bleakley, 69 N.Y.2d 490). Each of the defendants was engaged in some fashion in the assaults on the victims and was identified by a cab driver as the persons who so engaged in the assaults at the time of arrest.
Moreover, the assault on one victim was so severe as to rise to the objective level necessary to support a verdict of depraved indifference to human life since repeated blows to the head with a baseball bat is conduct so wanton as to permit a conclusion that defendants were indifferent to human life (cf., People v Gomez, 65 N.Y.2d 9).
Finally, we have reviewed the various claims of the defendants concerning imposition of sentence and find them to be without merit.
Concur — Ellerin, J.P., Kupferman, Rubin and Nardelli, JJ.