People v. Rosario

293 A.D.2d 298, 739 N.Y.S.2d 817, 2002 N.Y. App. Div. LEXIS 3567

Opinion

—Judgment, Supreme Court, Bronx County (Phyllis Skloot Bamberger, J.), rendered November 12, 1999, convicting defendant, after a jury trial, of gang assault in the second degree, assault in the second degree, attempted assault in the second degree and promoting prison contraband in the first degree, and sentencing him, as a second violent felony offender, to an aggregate term of six years, unanimously affirmed.

The verdict convicting defendant of gang assault in the second degree (Penal Law § 120.06) was based on legally sufficient evidence and was not against the weight of the evidence. The People’s evidence established that defendant was part of a group of inmates that jointly confronted, attacked and caused serious physical injury to the victim. The evidence clearly warranted the inference of joint activity as opposed to separate, simultaneous assaults by different persons (see, People v Allah, 71 NY2d 830, 832; People v Edmonds, 267 AD2d 19, lv denied 94 NY2d 862). We have considered and rejected defendant’s remaining arguments. Concur—Williams, P.J., Saxe, Buckley, Ellerin and Rubin, JJ.