People v Batista

People v Batista 2017 NY Slip Op 01831 Decided on March 15, 2017 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 March 15, 2017
Sweeny, J.P., Renwick, Mazzarelli, Manzanet-Daniels, JJ.
3410 1841/12

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

v

Carlin Batista, Defendant-Appellant.

Law Offices of George Vomvolakis, New York (George Vomvolakis of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Sabrina Margret Bierer of counsel), for respondent.

Judgment, Supreme Court, New York County (Jill Konviser, J.), rendered November 25, 2014, convicting defendant, after a jury trial, of gang assault in the first degree, and sentencing him to a term of 15 years, unanimously affirmed.

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 [2007]). There is no basis for disturbing the jury's credibility determinations. An accomplice witness's testimony was amply corroborated by surveillance videotapes and other evidence.

The court correctly denied defendant's request to charge second-degree gang assault as a lesser included offense, because there was no reasonable view of the evidence, viewed in the light most favorable to defendant, that he took part in the attack on

the victim but only intended to cause ordinary physical injury instrument (see People v Rivera, 23 NY3d 112, 120-21 [2014]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 15, 2017

CLERK