Opinion
2002-05248.
January 10, 2006.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Farneti, J.), rendered May 17, 2002, convicting him of gang assault in the first degree and assault in the third degree, upon a jury verdict, and imposing sentence.
Robert C. Mitchell, Riverhead, N.Y. (Monroe A. Semble of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Karla Lato of counsel), for respondent.
Before: Schmidt, J.P., Santucci, Mastro and Rivera, JJ., concur.
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by vacating the conviction of assault in the third degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
The defendant's contention that the People failed to adduce legally sufficient proof of his guilt beyond a reasonable doubt is unpreserved for appellate review ( see CPL 470.05; People v. Gray, 86 NY2d 10, 19-21). In any event, 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 the defendant's guilt beyond a reasonable doubt ( see People v. Adames, 308 AD2d 454).
The prosecutor's opening statement adequately described what the People intended to prove, and properly prepared the jury to resolve the factual issues at the trial ( see CPL 260.30; People v. Vera, 11 AD3d 716; see also People v. Kurtz, 51 NY2d 380, 384, cert denied 451 US 911; People v. Etoria, 266 AD2d 559; People v. Carter, 248 AD2d 722; People v. Vulpis, 173 AD2d 582; People v. Brown, 158 AD2d 461; People v. Tzatzimakis, 150 AD2d 512).
The trial court properly denied the defendant's motion to set aside the verdict pursuant to CPL 330.30 (3) based on newly-discovered evidence since the defendant failed to establish that the evidence could not have been produced at the trial with due diligence and was of such a character as to create a probability that had it been received in evidence it would have been more favorable to the defendant ( see CPL 330.30; People v. Salemi, 309 NY 208, cert denied 350 US 950; People v. Waller, 4 AD3d 440; People v. James, 299 AD2d 424; People v. Pacheco, 293 AD2d 629; People v. Wells, 289 AD2d 599; People v. Matthew, 274 AD2d 485). The newly-discovered evidence proffered by the defendant merely impeached and contradicted former evidence, and thus did not warrant the granting of a new trial ( see People v. Paasewe, 276 AD2d 807).
Upon our examination of the essential elements of assault in the first degree (Penal Law § 120.10) and assault in the second degree (Penal Law § 120.05) we find that the jury did not reach "an inherently self-contradictory verdict" in acquitting the defendant of those charges while convicting him of gang assault in the first degree and assault in the third degree ( see People v. Tucker, 55 NY2d 1, 8; see also People v. Loughlin, 76 NY2d 804, 806). However, the charge of assault in the third degree should have been dismissed as a lesser-included offense and an inclusory concurrent count of gang assault in the first degree ( see CPL 1.20; 300.40 [3] [b]; People v Corea, 25 AD3d 563 [decided herewith]; cf. People v. King, 265 AD2d 678). Although the defendant did not raise this issue on appeal, the interest of justice warrants that the defendant be granted the same relief as his codefendant ( see People v. Innis, 288 AD2d 236, 237).
Contrary to the defendant's contention, youthful offender treatment was not warranted ( see People v. Cruickshank, 105 AD2d 325, 334, affd sub nom. People v. Dawn Maria C., 67 NY2d 625; People v. Cox, 4 AD3d 481, 482; People v. Chappelle, 282 AD2d 881; People v. Finnegan, 238 AD2d 520).