                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: April 16, 2015                     105617
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

RUPERT ANDREWS,
                    Appellant.
________________________________


Calendar Date:    February 11, 2015

Before:   Peters, P.J., Garry, Rose and Lynch, JJ.

                              __________


     Ralph Cherchian, Albany, for appellant.

      Robert M. Carney, District Attorney, Schenectady (Peter
Willis of counsel), for respondent.

                              __________


Lynch, J.

      Appeal from a judgment of the Supreme Court (Milano, J.),
rendered September 20, 2012 in Schenectady County, upon a verdict
convicting defendant of the crimes of attempted assault in the
first degree and gang assault in the first degree.

      In September 2011, two individuals confronted defendant at
a deli. A third individual, the victim in this case, availed
himself of defendant's cash, marihuana and cell phone, which were
strewn onto the floor during an ensuing altercation. Afterwards,
defendant followed the victim from the deli, the two exchanged
words and, as the victim walked away, he overheard defendant
telephone a request that someone "go get the mag," which the
victim believed to mean a gun. Later that evening, the victim
returned to the deli and observed defendant and two other men
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watching him from a nearby apartment window. The victim saw the
light in the window go out and, moments later, saw defendant,
whom the victim described as "charged," and three other
individuals come out to the street. The men surrounded the
victim, who began fist fighting with defendant. Gun shots rang
out and a group of individuals, including the victim, ran away
from the site of this first altercation. Defendant and the
victim then continued fighting in an area down the block from the
deli and, as defendant held the victim's leg, another man slashed
the victim's face with a razor blade. The assailants left the
victim bleeding in the street. Eventually, the victim was
transported to the hospital, where he received 80 stitches to
close the wound. As is relevant to this appeal, defendant was
convicted after a jury trial of gang assault in the first degree
and attempted assault in the first degree and was sentenced to
concurrent prison terms of 15 years with five years of
postrelease supervision and 17 years with five years of
postrelease supervision, respectively. Defendant now appeals.

      Upon review of the evidence presented at trial, we find
that the jury's verdict was supported by legally sufficient
evidence and was not contrary to the weight of the evidence (see
People v Bleakley, 69 NY2d 490, 495 [1987]). A conviction for
gang assault in the first degree is supported by proof that "a
person . . ., with intent to cause serious physical injury to
another person and when aided by two or more other persons
actually present, . . . causes serious physical injury to such
person" (Penal Law § 120.07; accord People v Sanchez, 13 NY3d
554, 563 [2009]). Here, Mark Green, who lived in an apartment
near the deli, testified that defendant went to Green's apartment
after the victim stole his money, marihuana and phone, and
summoned Clarence Stanford and Jerod Hemmingway to the apartment
to help him plan his revenge. Hemmingway and Stanford testified
that they went to Green's apartment at defendant's behest with a
razor blade and gun, respectively. For his part, Hemmingway
testified that, in response to taunting from the others, he joked
that a razor blade was all he would need to fight the victim.
Green testified that they saw the victim arrive at the deli and
that all four men then went downstairs, but that he stayed on the
porch while Stanford, Hemmingway and defendant approached the
victim. According to Green, as the victim tried to fight them
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off, defendant, Stanford and Hemmingway chased the victim down
the street, with Stanford firing the gun at the victim as they
ran after him. According to the victim, Stanford followed him to
the area where defendant caught him and held him as Hemmingway
slashed his face.

      We reject defendant's argument that the People failed to
prove the element that he had been aided by two or more people
actually present. We recognize that the incident started in one
location with defendant and at least three people present, and
that the victim was slashed with the razor blade at a second
location approximately one block away. As to the second
location, there is conflicting evidence with regard to how many
people were present. To conclude that a person was "actually
present" during a gang assault (Penal Law § 120.27), the proof
must demonstrate that he or she was "in the immediate vicinity of
the crime, and [was] capable of rendering immediate assistance to
an individual committing the crime" (People v Sanchez, 13 NY3d at
564; see People v Johnson, 107 AD3d 1161, 1163-1164 [2013], lv
denied 21 NY3d 1075 [2013]; People v Cordato, 85 AD3d 1304, 1312
[2011], lv denied 17 NY3d 815 [2011]). Here, we find that the
evidence was legally sufficient to establish that defendant acted
with the aid of two or more people who were actually present
because, viewing all the evidence in the light most favorable to
the People, we can infer that, at all times, Hemmingway and
Stanford were in the immediate vicinity and able to assist
defendant in the assault.

      Defendant also contends that the People failed to
demonstrate that the victim suffered a serious physical injury, a
defined element of the crime of gang assault in the first degree
(see Penal Law §§ 10.00 [10]; 120.07). Inasmuch as defendant's
trial motions to dismiss did not address this specific issue, his
challenge to the legal sufficiency of the evidence presented in
support of this element is not preserved for our review (see
People v Finger, 95 NY2d 894, 895 [2000]; People v Junior, 119
AD3d 1228, 1229 [2014], lv denied 24 NY3d 1044 [2014]).
Nevertheless, we evaluate the adequacy of the evidence as to each
element of the crime as part of our weight of the evidence review
(see People v Danielson, 9 NY3d 342, 349 [2007]; People v Junior,
119 AD3d at 1229; People v Johnson, 107 AD3d at 1163 n 2).
                              -4-                105617

      A "serious . . . disfigurement" qualifies as a serious
physical injury if it is "objectively distressing or
objectionable" (People v Stewart, 18 NY3d 831, 832 [2011]
[internal quotation marks and citation omitted]). This objective
standard requires consideration of the injury "in context,
considering its location on the body and any relevant aspects of
the victim's overall physical appearance" (People v McKinnon, 15
NY3d 311, 315 [2010]). Here, the victim testified that he
received 80 stitches to close the wound across his cheek.
Although he was reluctant to display his injury to the jury, the
evidence included photographs of the victim's scar. These
photographs, taken at the time of trial, show a significant,
uneven scar running across the victim's cheek from his ear to his
mouth. Although a different verdict would not have been
unreasonable, viewing this evidence in a neutral light (see
People v Danielson, 9 NY3d at 348; People v Bleakley, 69 NY2d at
495; People v Powell, 101 AD3d 1369, 1370 [2012], lv denied 21
NY3d 1019 [2013]), we perceive no error in the jury's
determination that the victim suffered a serious physical injury
(see People v Powell, 101 AD3d at 1370; compare People v
Trombley, 97 AD3d 903, 903 [2012]).

      Finally, although defendant did not preserve his challenge
to the legal sufficiency of the evidence supporting the jury's
verdict on the attempted assault in the first degree charge, he
does contend that the verdict on this count was contrary to the
weight of the evidence. As is relevant here, a conviction for
attempted assault in the first degree must be supported by
evidence that the defendant attempted to cause serious physical
injury to another person by means of a deadly weapon (see Penal
Law §§ 110.00, 120.10 [1]). Here, as it was not defendant who
shot the gun, the charge was based on defendant's accessorial
liability (see Penal Law § 20.00). "A defendant may be held
criminally liable for the conduct of another person when, acting
with the mental culpability required for the commission thereof,
[the defendant] solicits, requests, commands, importunes, or
intentionally aids such person to engage in such conduct" (People
v Fancher, 116 AD3d 1084, 1086 [2014] [internal quotation marks
and citation omitted]). Here, as an acquittal would not have
been unreasonable, we view the evidence in a neutral light and
find that the verdict was not against the weight of the evidence.
                              -5-                  105617

Our holding in this regard remains even though defendant's
codefendant was acquitted of the charges against him (see Penal
Law § 20.05 [2]; People v Thomas, 5 AD3d 305, 307 [2004], lv
denied 2 NY3d 807 [2004]; People v Gemmill, 146 AD2d 951, 952
[1989]).

     Peters, P.J., Garry and Rose, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
