People v Nicholson

People v Nicholson 2012 NY Slip Op 06899 Decided on October 16, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 16, 2012
Tom, J.P., Mazzarelli, Andrias, DeGrasse, Román, JJ.
8319 710/08

[*1]The People of the State of New York, Respondent,

v

Lloyd Nicholson, Defendant-Appellant. Correction Officers' Benevolent Association, Amicus Curiae.




Virginia Boccio, Farmingdale, for appellant.
Robert T. Johnson, District Attorney, Bronx (Jason S.
Whitehead of counsel), for respondent.
Leslie H. Ben-Zvi, New York, for amicus curiae.

Judgment, Supreme Court, Bronx County (Martin Marcus, J.), rendered August 6, 2010, convicting defendant, after a nonjury trial, of gang assault in the second degree and assault in the second degree, and sentencing him to an aggregate term of 6 years, unanimously affirmed.

The verdict was supported by legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348 [2007]). There is no basis for disturbing the court's credibility determinations.

Defendant, a correction officer, directed a large group of inmates to attack two other inmates while defendant remained nearby. Defendant was properly convicted of second-degree assault under Penal Law § 120.05(7), because, although not an inmate himself, he acted in concert with inmates (see Penal Law § 20.05[3]). The same proof also established the elements of second-degree gang assault (Penal Law § 120.06). The evidence warrants the conclusion that defendant intended to cause physical injury to the victims, and that defendant's order that the victims not be hit in the face was merely intended to minimize visible injuries. [*2]

We perceive no basis for reducing the sentence.

We have considered and rejected the arguments raised in the amicus curiae brief.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 16, 2012

CLERK