PEOPLE v. KIM (1998)

Appeal by the People from so much of an order of the Supreme Court, Queens County (Eng., J.), dated January 14, 1998, as granted those branches of the defendant's omnibus motion which were to dismiss the first six counts of Indictment No. 4374/97 charging him with attempted murder in the second degree, assault in the first degree (two counts), gang assault in the first degree, gang assault in the second degree, and criminal possession of a weapon in the fourth degree as charged in count six.

ORDERED that the order is modified, on the law, by deleting the provisions thereof granting those branches of the motion which were to dismiss counts two through six of Indictment No. 4374/97, and substituting therefor a provision denying those branches of the motion and reinstating those counts;  as so modified, the order is affirmed insofar as appealed from.

 Viewing the evidence in the light most favorable to the People, and giving it the benefit of every favorable inference (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), it was legally sufficient to support counts two through six of the indictment charging various counts of assault and weapon possession.   The evidence demonstrated that the defendant was armed with a baseball bat, and participated in a gang revenge attack on the complainant.   The defendant, in a statement given to the police, admitted driving several accomplices and searching for the complainant to exact revenge for an earlier altercation.   The statement placed him at the scene of the crime with a bat in his hands, although he denied participating.   He later drove the assailants away from the scene of the attack.   The complainant testified that all of the members of the gang participated in the assault, but did not specifically inculpate the defendant.   While this raised a factual issue for a jury's resolution, the evidence was nevertheless legally sufficient to sustain counts two through six of the indictment (see, People v. Jackson, 44 N.Y.2d 935, 408 N.Y.S.2d 315, 380 N.E.2d 147;  People v. Bailey, 156 A.D.2d 454, 548 N.Y.S.2d 748;  People v. Santana, 141 A.D.2d 778, 529 N.Y.S.2d 600;  People v. McClary, 138 A.D.2d 413, 525 N.Y.S.2d 697;  see also, People v. Coulter, 240 A.D.2d 756, 660 N.Y.S.2d 43;  People v. Wooten, 214 A.D.2d 596, 625 N.Y.S.2d 63;  People v. Spain, 110 A.D.2d 724, 488 N.Y.S.2d 40).

 However, the court was correct to dismiss count one of the indictment (see, People v. Akptotanor, 158 A.D.2d 694, 551 N.Y.S.2d 960, affd. 76 N.Y.2d 1000, 564 N.Y.S.2d 714, 565 N.E.2d 1265;  People v. Ramos, 130 A.D.2d 688, 515 N.Y.S.2d 610;  People v. Bray, 99 A.D.2d 470, 470 N.Y.S.2d 50).   The sole murder count of the indictment alleged that the defendant intended to kill the victim (see, Penal Law § 125.25[1] ).   However, there was insufficient evidence that the revenge attack was intended to be fatal, or that a community of purpose existed to kill the complainant.

MEMORANDUM BY THE COURT.