PEOPLE v. LARIOS (2006)

Appeal by the defendant from a judgment of the County Court, Suffolk County (Farneti, J.), rendered May 17, 2002, convicting him of gang assault in the first degree and assault in the third 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 vacating the conviction of assault in the third degree, vacating the sentence imposed thereon, and dismissing that count of the indictment;  as so modified, the judgment is affirmed.

The defendant's contention that the People failed to adduce legally sufficient proof of his guilt beyond a reasonable doubt is unpreserved for appellate review (see CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 19-21, 629 N.Y.S.2d 173, 652 N.E.2d 919).   In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt (see People v. Adames, 308 A.D.2d 454, 764 N.Y.S.2d 200).

The prosecutor's opening statement adequately described what the People intended to prove, and properly prepared the jury to resolve the factual issues at the trial (see CPL 260.30[3];  People v. Vera, 11 A.D.3d 716, 784 N.Y.S.2d 562;  see also People v. Kurtz, 51 N.Y.2d 380, 384, 434 N.Y.S.2d 200, 414 N.E.2d 699, cert. denied 451 U.S. 911, 101 S.Ct. 1983, 68 L.Ed.2d 301;  People v. Etoria, 266 A.D.2d 559, 699 N.Y.S.2d 121;  People v. Carter, 248 A.D.2d 722, 670 N.Y.S.2d 542;  People v. Vulpis, 173 A.D.2d 582, 570 N.Y.S.2d 165;  People v. Brown, 158 A.D.2d 461, 550 N.Y.S.2d 913;  People v. Tzatzimakis, 150 A.D.2d 512, 541 N.Y.S.2d 106).

 The trial court properly denied the defendant's motion to set aside the verdict pursuant to CPL 330.30(3) based on newly-discovered evidence since the defendant failed to establish that the evidence could not have been produced at the trial with due diligence and was of such a character as to create a probability that had it been received in evidence it would have been more favorable to the defendant (see CPL 330.30[3];  People v. Salemi, 309 N.Y. 208, 128 N.E.2d 377, cert. denied 350 U.S. 950, 76 S.Ct. 325, 100 L.Ed. 827;  People v. Waller, 4 A.D.3d 440, 771 N.Y.S.2d 363;  People v. James, 299 A.D.2d 424, 749 N.Y.S.2d 433;  People v. Pacheco, 293 A.D.2d 629, 740 N.Y.S.2d 245;  People v. Wells, 289 A.D.2d 599, 735 N.Y.S.2d 815;  People v. Matthew, 274 A.D.2d 485, 711 N.Y.S.2d 35).   The newly-discovered evidence proffered by the defendant merely impeached and contradicted former evidence, and thus did not warrant the granting of a new trial (see People v. Paasewe, 276 A.D.2d 807, 715 N.Y.S.2d 703).

 Upon our examination of the essential elements of assault in the first degree (Penal Law § 120.10[1] ) and assault in the second degree (Penal Law § 120.05[2] ) we find that the jury did not reach “an inherently self-contradictory verdict” in acquitting the defendant of those charges while convicting him of gang assault in the first degree and assault in the third degree (see People v. Tucker, 55 N.Y.2d 1, 8, 447 N.Y.S.2d 132, 431 N.E.2d 617;  see also People v. Loughlin, 76 N.Y.2d 804, 806, 559 N.Y.S.2d 962, 559 N.E.2d 656).   However, the charge of assault in the third degree should have been dismissed as a lesser-included offense and an inclusory concurrent count of gang assault in the first degree (see CPL 1.20[37];  300.40[3] [b];  People v. Corea, 25 A.D.3d 563, 808 N.Y.S.2d 719 [decided herewith];  cf. People v. King, 265 A.D.2d 678, 697 N.Y.S.2d 371).   Although the defendant did not raise this issue on appeal, the interest of justice warrants that the defendant be granted the same relief as his codefendant (see People v. Innis, 288 A.D.2d 236, 237, 732 N.Y.S.2d 358).

Contrary to the defendant's contention, youthful offender treatment was not warranted (see People v. Cruickshank, 105 A.D.2d 325, 334, 484 N.Y.S.2d 328, affd. sub nom. People v. Dawn Maria C., 67 N.Y.2d 625, 499 N.Y.S.2d 663, 490 N.E.2d 530;  People v. Cox, 4 A.D.3d 481, 482, 771 N.Y.S.2d 683;  People v. Chappelle, 282 A.D.2d 881, 726 N.Y.S.2d 465;  People v. Finnegan, 238 A.D.2d 520, 657 N.Y.S.2d 935).