People v. Cheng

Appellate Division of the Supreme Court of New York

People v. Cheng

232 A.D.2d 651, 648 N.Y.S.2d 1011, 1996 N.Y. App. Div. LEXIS 11292

Appellate Division of the Supreme Court of the State of New York·Decided October 28, 1996·Published·Cited by 6 cases

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Cooperman, J.), rendered July 12, 1994, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish that the defendant shared a "community of purpose” with the shooter, so as to be held responsible for the acts of the principal (see, People v Armistead, 178 AD2d 607; People v McClary, 138 AD2d 413). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (CPL 470.15 [5]). Furthermore, the trial court did not err in denying the defendant’s CPL 330.30 motion to set aside the verdict on the ground of newly discovered evidence, where the [652] sole basis for this motion was an eyewitness’s recantation of his trial testimony (see, People v Salemi, 309 NY 208, cert denied 350 US 950; People v Baxley, 194 AD2d 681, mod on other grounds 84 NY2d 208).

The sentence imposed was not excessive (see, People v Suitte, 90 AD2d 80).

The defendant’s remaining contentions are either unpreserved for appellate review or without merit. Bracken, J. P., Copertino, Altman and Hart, JJ., concur.

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—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Cooperman, J.), rendered July 12, 1994, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish that the defendant shared a "community of purpose” with the shooter, so as to be held responsible for the acts of the principal (see, People v Armistead, 178 AD2d 607; People v McClary, 138 AD2d 413). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (CPL 470.15 [5]). Furthermore, the trial court did not err in denying the defendant’s CPL 330.30 motion to set aside the verdict on the ground of newly discovered evidence, where the [652] sole basis for this motion was an eyewitness’s recantation of his trial testimony (see, People v Salemi, 309 NY 208, cert denied 350 US 950; People v Baxley, 194 AD2d 681, mod on other grounds 84 NY2d 208).

The sentence imposed was not excessive (see, People v Suitte, 90 AD2d 80).

The defendant’s remaining contentions are either unpreserved for appellate review or without merit. Bracken, J. P., Copertino, Altman and Hart, JJ., concur.

People v. Cheng, 232 A.D.2d 651, 648 N.Y.S.2d 1011, 1996 N.Y. App. Div. LEXIS 11292 (N.Y. Ct. App. 1996).

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