Opinion
2003-02980
January 10, 2005.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Feldman, J.), rendered March 25, 2003, convicting him of gang assault in the second degree, upon a jury verdict, and imposing sentence.
Before: H. Miller, J.P., Crane, Spolzino and Skelos, JJ., concur.
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 beyond a reasonable doubt the defendant's guilt of gang assault in the second degree ( see Penal Law § 120.06). The jury could have reasonably inferred that the defendant and the codefendant were in a position to render immediate assistance to their accomplice and, therefore, posed a sufficient threat of additional violence so as to satisfy the aggravating element necessary to sustain the conviction of gang assault in the second degree ( see People v. Marquez, 298 AD2d 407, 408; cf. People v. Hedgeman, 70 NY2d 533; People v. Carr-El, 287 AD2d 731, 732, affd 99 NY2d 546). 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).
The defendant's arguments regarding alleged prosecutorial misconduct during summation are partially unpreserved for appellate review ( see CPL 470.05). In any event, any prejudice that may have resulted from the challenged remarks was alleviated when the trial court sustained the defendant's objections and provided curative instructions to the jury ( see People v. Burrell, 178 AD2d 422). To the extent that any alleged inappropriate remark remained unaddressed, it was harmless in light of the overwhelming evidence of the defendant's guilt ( see People v. Stith, 291 AD2d 576).
The sentence imposed was not excessive ( see People v. Suitte, 90 AD2d 80).