People v. Mayancela

207 A.D.3d 752

172 N.Y.S.3d 113

The PEOPLE, etc., respondent,

v.Luis L. MAYANCELA, appellant.

2019-06096

Ind. No. 2660/16

Supreme Court, Appellate Division, Second Department, New York.

Submitted—June 24, 2022

July 27, 2022

Joseph F. DeFelice, Kew Gardens, NY, for appellant.

Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Roni C. Piplani, and Joseph M. DiPietro of counsel), for respondent.

FRANCESCA E. CONNOLLY, J.P., REINALDO E. RIVERA, DEBORAH A. DOWLING, HELEN VOUTSINAS, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Stephanie Zaro, J.), rendered May 16, 2019, convicting him of gang assault in the first degree, assault in the first degree, robbery in the first degree (two counts), robbery in the second degree, and assault in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the defendant's convictions of gang assault in the first degree, assault in the first degree, robbery in the first degree under Penal Law § 160.15(1), and assault in the second degree to attempted gang assault in the first degree, attempted assault in the first degree, attempted robbery in the first degree, and attempted assault in the second degree, respectively, and by vacating the sentences imposed thereon; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Queens County, for sentencing on the convictions of attempted gang assault in the first degree, attempted assault in the first degree, attempted robbery in the first degree, and attempted assault in the second degree.

On October 29, 2016, the complainant was stabbed multiple times, by multiple members of a rival gang. A witness testified at trial that the rival gang members were out "mobbing," or searching for members of the complainant's gang to physically harm. According to the trial testimony of the physician who treated the complainant upon the complainant's arrival at a hospital emergency room, the complainant sustained multiple lacerations and wounds to his neck, head, chest, and abdomen, none of which affected his internal organs, and which were treated with sutures. The physician further testified that, during his examination of the complainant on the day of the incident, he noted that the complainant's injuries had caused him to have a diminished grip strength in his left hand. The complainant testified at the trial that he suffered numbness in his left arm "for a while" after the attack. The complainant also testified that, during the attack, one of the assailants took his cane. Following a jury trial, the defendant was convicted of gang assault in the first degree, assault in the first degree, robbery in the first degree (two counts), robbery in the second degree, and assault in the second degree.

The defendant's contentions regarding the legal sufficiency of his convictions are unpreserved for appellate review (see CPL 470.05[2] ; People v. Hawkins, 11 N.Y.3d 484, 872 N.Y.S.2d 395, 900 N.E.2d 946 ). In any event, the defendant's contentions are without merit as to robbery in the first degree under Penal Law § 160.15(3) and robbery in the second degree. When viewed in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that the evidence was legally sufficient to establish that the defendant shared a community of purpose with the assailant who stole the complainant's cane (see People v. Williams, 164 A.D.3d 842, 844, 82 N.Y.S.3d 94 ). Furthermore, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL § 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the jury's finding that the defendant was guilty of robbery in the first degree under Penal Law § 160.15(3) and robbery in the second degree was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).

The defendant also challenges his convictions of gang assault in the first degree, assault in the first degree, robbery in the first degree under Penal Law § 160.15(1), and assault in the second degree, asserting that the People failed to present legally sufficient evidence that the complainant suffered a "serious physical injury" (id. §...