PEOPLE v. SHOY (2019)

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).  There is no basis for disturbing the jury's credibility determinations.  As to both victims, the evidence, including a surveillance videotape, established the element of intent to cause serious physical injury, as required for attempted first-degree gang assault.  The evidence supporting the inference of defendant's intent was not limited to his own violent acts, but also included his acts of assisting others in committing more serious violence against the victims (see Matter of Juan J., 81 N.Y.2d 739, 593 N.Y.S.2d 768, 609 N.E.2d 121 [1992] ).  The evidence permitted the jury to reasonably infer that defendant was part of a group that surrounded the first victim, and that while some members of the group assaulted the victim, defendant and others prevented him from leaving (see People v. Edmonds, 267 A.D.2d 19, 19, 699 N.Y.S.2d 54 [1st Dept. 1999], lv denied 94 N.Y.2d 862, 704 N.Y.S.2d 537, 725 N.E.2d 1099 [1999] ).  The jury was also justified in finding that defendant kicked the second victim, and that this intentionally aided another participant in simultaneously inflicting more serious blows (see People v. Bishop, 117 A.D.3d 430, 984 N.Y.S.2d 375 [1st Dept. 2014], lv denied 23 N.Y.3d 1034, 993 N.Y.S.2d 248, 17 N.E.3d 503 [2014] ).  We do not find that the jury's mixed verdict warrants a different result (see People v. Rayam, 94 N.Y.2d 557, 708 N.Y.S.2d 37, 729 N.E.2d 694 [2000] ).

The court's charge, viewed as a whole (see generally People v. Umali, 10 N.Y.3d 417, 426–427, 859 N.Y.S.2d 104, 888 N.E.2d 1046 [2008], cert denied 556 U.S. 1110, 129 S.Ct. 1595, 173 L.Ed.2d 685 [2009];  People v. Drake, 7 N.Y.3d 28, 33, 817 N.Y.S.2d 583, 850 N.E.2d 630 [2006] ), properly explained that in order to find defendant criminally liable for the conduct of others, the jury had to find that he acted with the requisite intent to commit the offense, and that he intentionally aided the others in such conduct.  The court gave the jury a thorough and accurate explanation of the concept of acting in concert, in which it repeatedly emphasized that defendant's personal state of mind was controlling.  At the point when the court used the term acting in concert while stating the elements of attempted gang assault, the jury had just been told exactly what acting in concert requires.  As such, the jury could not have been misled to believe that the intent of another participant in the crime could satisfy the intent element.  Finally, the court provided meaningful responses to notes from the deliberating jury.

We perceive no basis for reducing the sentence.