PEOPLE v. WASHINGTON (2023)

Judgment, Supreme Court, New York County (Maxwell Wiley, J.), rendered June 28, 2018, convicting defendant, after a jury trial, of gang assault in the first degree (two counts), criminal possession of a weapon in the second degree and conspiracy in the third degree, and sentencing him to an aggregate term of 40 years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of directing that all sentences be served concurrently, resulting in a new aggregate term of 25 years, and otherwise affirmed.

Defendant's argument that his gang assault convictions were against the weight of the evidence is unavailing (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]).  We find no basis to disturb the jury's credibility determinations, and the jury's mixed verdict does not warrant a different conclusion.  Although in performing weight of the evidence review, we may consider an alleged factual inconsistency in a verdict (see People v. Rayam, 94 N.Y.2d 557, 563 n., 708 N.Y.S.2d 37, 729 N.E.2d 694 [2000]), we find it “imprudent to speculate concerning the factual determinations that underlay the verdict” (People v. Horne, 97 N.Y.2d 404, 413, 740 N.Y.S.2d 675, 767 N.E.2d 132 [2002]).

The court providently exercised its discretion in admitting evidence of gang language and practices through the People's expert (see People v. Bailey, 148 A.D.3d 547, 548, 50 N.Y.S.3d 53 [1st Dept. 2017], affd 32 N.Y.3d 70, 85 N.Y.S.3d 377, 110 N.E.3d 489 [2018]).  To the extent that the witness explained coded words and phrases, we find that this testimony did not exceed the limitations contained in People v. Inoa, 25 N.Y.3d 466, 474, 13 N.Y.S.3d 329, 34 N.E.3d 839 (2015).  Although the witness also testified about his own observations, there was no legal impediment to the officer testifying as both a fact and expert witness (see People v. Pinkston, 169 A.D.3d 520, 520–21, 94 N.Y.S.3d 268 [1st Dept. 2019], lv denied 33 N.Y.3d 1108, 106 N.Y.S.3d 689, 130 N.E.3d 1299 [2019]).  The officers who testified about how they identified the codefendants as associated members of a gang based their testimony on personal observations, review of video footage and the individuals in custody, social media posts linking them together, and nontestimonial statements made in phone calls and text messages reviewed.  Assuming that the witnesses’ reference to how they also used unspecified debriefings of nontestifying informants when identifying members violated the Confrontation Clause, we find that the People have proven “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained” (Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 [1967]).  This evidence was limited to the issue of gang affiliation, and it was cumulative to extensive admissible evidence on that subject.

Defendant did not preserve his claim that the court's charge on gang assault was defective, his claim that evidence of defendant's social media posts and videos should have been excluded, and his Second Amendment challenge to his weapon possession conviction, and we decline to review these arguments in the interest of justice.  As an alternative holding, we find no basis for reversal.  We have considered and rejected defendant's arguments on the subject of preservation or lack thereof, including his related claim of ineffective assistance of counsel.

We find the sentence excessive to the extent indicated.