Opinion
Argued June 24, 1999
October 4, 1999
James E. Neuman, New York, N.Y., for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Roseann B. MacKechnie, Victor Barall, and Phyllis Mintz of counsel), for respondent.
LAWRENCE J. BRACKEN, J.P., CORNELIUS J. O'BRIEN, FRED T. SANTUCCI, GLORIA GOLDSTEIN, JJ.
DECISION ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.), rendered October 21, 1996, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to establish his guilt of murder in the second degree is unpreserved for appellate review (see, CPL 470.05; People v. Udzinski, 146 A.D.2d 245). In any event, viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. The evidence adduced at trial demonstrated that the defendant had the intent to kill the victim. Although the defendant was observed by witnesses only punching and kicking the victim, he wilfully and knowingly continued to participate in the assault while other members of the mob stabbed the victim. Accordingly, the evidence proved that the defendant shared a "'community of purpose'" with the mob establishing his homicidal intent (People v. Allah, 71 N.Y.2d 830, 832, quoting People v. Whatley, 69 N.Y.2d 784, 785; see also, People v. Correa, ___ A.D.2d ___ [decided herewith]; People v. Bell, 94 A.D.2d 894, 896; People v. Bosque, 78 A.D.2d 986, cert denied 451 U.S. 992). 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 (see, CPL 470.15).
Testimony regarding the defendant's membership in a gang was properly admitted since such evidence was relevant to motive and its probative value outweighed its potential prejudice (see, People v. Boyd, 164 A.D.2d 800, 803; People v. Polk, 84 A.D.2d 943, 945; People v. Bernard, 224 A.D.2d 192).
The defendant's sentence was not excessive (see, People v. Suitte, 90 A.D.2d 80).
The defendant's remaining contentions are either unpreserved for appellate review, without merit, or relate to errors which were harmless in light of the overwhelming evidence of guilt (see, People v. Crimmins, 36 N.Y.2d 230).
BRACKEN, J.P., O'BRIEN, SANTUCCI, and GOLDSTEIN, JJ., concur.