PEOPLE v. MODESTO (1999)

Appeal by the defendant from (1) a judgment of the Supreme Court, Kings County (Feldman, J.), rendered May 9, 1997, convicting him of manslaughter in the first degree, upon a jury verdict, and imposing sentence, and (2) a resentence of the same court, imposed February 5, 1998.

ORDERED that the judgment and the resentence are affirmed.

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 beyond a reasonable doubt that the appellant was one of numerous gang members who perpetrated a vicious fatal assault upon an individual believed to be a member of a rival gang.   Although the appellant was not among the assailants using knives or ice picks, the evidence nevertheless established that he shared a community of purpose with his fellow gang members (see, People v. Cabey, 85 N.Y.2d 417, 626 N.Y.S.2d 20, 649 N.E.2d 1164;  People v. Allah, 71 N.Y.2d 830, 527 N.Y.S.2d 731, 522 N.E.2d 1029).   Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15[5] ).

The appellant's remaining contentions are without merit (see, People v. Ramos, 262 A.D.2d 587, 693 N.Y.S.2d 158).

MEMORANDUM BY THE COURT.