Opinion
No. 15719.
December 28, 2006.
Crew III, J. Appeal from a judgment of the County Court of Cortland County (Campbell, J.), rendered September 16, 2004, upon a verdict convicting defendant of the crimes of assault in the first degree, assault in the second degree (three counts), gang assault in the second degree, robbery in the first degree (two counts) and robbery in the second degree (two counts).
Thomas H. Kheel, Ithaca, for appellant.
David S. Hartnett, District Attorney, Cortland, for respondent.
Before: Mercure, J.P., Peters, Spain and Carpinello, JJ.
The victim here was assaulted and robbed by a group of five persons, one of whom was defendant. As a consequence, defendant was indicted and ultimately convicted of, among other things, assault in the first degree for which he was sentenced to seven years' imprisonment and five years' postrelease supervision. Defendant now appeals.
Initially, we reject defendant's contention that the verdict was against the weight of the evidence. However, we agree, and the People concede, that defendant's conviction must be reversed for the same reasons as expressed in this Court's decision in People v Simmons ( 29 AD3d 1219), which involved a co-defendant.
Ordered that the judgment is reversed, on the law, and matter remitted to the County Court of Cortland County for a new trial.