People v Brown

People v Brown 2008 NY Slip Op 09642 [57 AD3d 260] December 9, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 11, 2009

The People of the State of New York, Respondent,
v
Venice Brown, Appellant. The People of the State of New York, Respondent, v Patreese Johnson, Appellant.

—[*1] Gibbons P.C., Newark, N.J. (Melanca D. Clark of counsel), for Venice Brown, appellant.

Orrick, Herrington & Sutcliffe LLP, New York (Karen D. Thompson of counsel), for Patreese Johnson, appellant.

Robert M. Morgenthau, District Attorney, New York (Susan Axelrod of counsel), for respondent.

Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered June 14, 2007, convicting defendant Venice Brown, after a jury trial, of gang assault in the second degree and assault in the third degree, and sentencing her to an aggregate term of five years, unanimously modified, on the law and as a matter of discretion in the interest of justice, to the extent of vacating the gang assault conviction and remanding for a new trial on that count, and otherwise affirmed.

Judgment, same court and Justice, rendered June 14, 2007, convicting defendant Patreese Johnson, after a jury trial, of gang assault in the second degree and assault in the first and second degrees, and sentencing her to concurrent terms of 11 years, 11 years and seven years, respectively, unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the sentences for the gang assault in the second degree and assault in the first degree convictions to eight years each, and otherwise affirmed.

The evidence of defendant Brown's participation in the crime is substantially similar to the evidence received at the same trial against codefendant Renata Hill. Accordingly, for the reasons stated in our prior decision (People v Hill, 52 AD3d 380 [2008]), we conclude that the verdict as to Brown was based on legally sufficient evidence and was not against the weight of the evidence, but that Brown is entitled to a new trial on the gang assault charge because of the charging errors discussed in Hill. We find it unnecessary to reach any other issues raised by [*2]Brown.

Defendant Johnson, who personally stabbed the victim, challenges the sufficiency of the evidence establishing the element of serious physical injury. That claim is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits. Even without the aid of expert testimony, the jury could have readily inferred from the victim's testimony and medical records that his stab wounds to his liver and stomach were life-threatening (see e.g. People v Jones, 38 AD3d 352 [2007], lv denied 9 NY3d 846 [2007]). Johnson's ineffective assistance of counsel claim relating to this issue is likewise without merit.

We find Johnson's sentence excessive to the extent indicated. Concur—Mazzarelli, J.P., Friedman, Gonzalez, Buckley and Sweeny, JJ.