PEOPLE v. WASHINGTON (2020)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (ShawnDya L. Simpson J.), rendered February 16, 2017, convicting him of assault in the second degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's challenge to the legal sufficiency of the evidence relating to the two charges of which he was convicted is unpreserved for appellate review (see CPL 470.05[2];  People v. Padro, 75 N.Y.2d 820, 552 N.Y.S.2d 555, 551 N.E.2d 1233).  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 beyond a reasonable doubt that the defendant physically injured the victims by means of a “dangerous instrument,” namely footwear readily capable of causing serious physical injury in the manner in which it was used (Penal Law § 120.05[2];  see Penal Law § 10.00[13];  Matter of Jason J., 187 A.D.2d 652, 653, 590 N.Y.S.2d 893;  People v. Bidwell, 153 A.D.2d 960, 545 N.Y.S.2d 402;  but see People v. Johnson, 241 A.D.2d 954, 661 N.Y.S.2d 326), and that the defendant acted in concert with his codefendant such that he was responsible for the codefendant's conduct in striking one of the victims in the back of the head with a bottle (see People v. Scott, 25 N.Y.3d 1107, 1109–1110, 14 N.Y.S.3d 308, 35 N.E.3d 476;  People v. Allah, 71 N.Y.2d 830, 831–832, 527 N.Y.S.2d 731, 522 N.E.2d 1029;  People v. Gurgov, 129 A.D.3d 989, 990, 12 N.Y.S.3d 179;  Matter of Tatiana N., 73 A.D.3d 186, 191, 899 N.Y.S.2d 21).  Moreover, upon our independent review of the record (see CPL 470.15[5];  People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

Under the circumstances of this case, any error by the trial court in failing to administer an expanded charge on cross-racial identification (see People v. Boone, 30 N.Y.3d 521, 69 N.Y.S.3d 215, 91 N.E.3d 1194) was harmless, as there was overwhelming evidence of the defendant's guilt and no significant probability that the defendant would have been acquitted if not for the error (see People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787;  People v. Ibarguen, 173 A.D.3d 1207, 101 N.Y.S.3d 616;  People v. Jordan, 167 A.D.3d 1044, 1044–1045, 91 N.Y.S.3d 159;  People v. Bradley, 160 A.D.3d 760, 762, 74 N.Y.S.3d 317).

The defendant's remaining contention is without merit.

CHAMBERS, J.P., AUSTIN, MILLER and CHRISTOPHER, JJ., concur.