         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
454.1
KA 10-00186
PRESENT: SCUDDER, P.J., SMITH, LINDLEY, GREEN, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                                MEMORANDUM AND ORDER

WILLIAM A. MEACHAM, DEFENDANT-APPELLANT.


JOHN E. TYO, SHORTSVILLE, FOR DEFENDANT-APPELLANT.

BARRY L. PORSCH, DISTRICT ATTORNEY, WATERLOO, FOR RESPONDENT.


     Appeal from a judgment of the Seneca County Court (Dennis F.
Bender, J.), rendered December 21, 2009. The judgment convicted
defendant, upon a jury verdict, of gang assault in the first degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of gang assault in the first degree (Penal Law § 120.07),
defendant contends that the evidence is legally insufficient to
establish that he intended to cause serious physical injury to the
victim. We reject that contention (see People v Chowdhury, 22 AD3d
596, lv denied 6 NY3d 753; see generally People v Bleakley, 69 NY2d
490, 495). Multiple witnesses testified at trial that defendant
repeatedly punched or kicked the victim while he was on the ground.
As a result of the beating, the victim sustained fractures to his face
and skull, as well as permanent brain damage. Several relatives and a
friend of defendant also struck the victim while he was on the ground.
The People presented evidence establishing that defendant spearheaded
the assault because he was angry with the victim for posting
photographs of individuals identified as registered sex offenders,
including defendant, at the apartment complex where defendant and the
victim resided. Although defendant did not admit during the assault
or anytime thereafter that his intent was to cause serious physical
injury to the victim, “[a] defendant may be presumed to intend the
natural and probable consequences of his actions” (People v Mahoney, 6
AD3d 1104, lv denied 3 NY3d 660; see People v Getch, 50 NY2d 456,
465). The natural and probable consequences of repeatedly striking a
man while he is on the ground defenseless is that he will sustain a
serious physical injury within the meaning of Penal Law § 10.00 (10).
Defendant’s intent may also be “inferred from the totality of [his]
conduct” (People v Horton, 18 NY2d 355, 359, mot to amend remittitur
granted 19 NY2d 600, 634, cert denied 387 US 934; see People v Mike,
283 AD2d 989, lv denied 96 NY2d 904), including the anger that
                                 -2-                           454.1
                                                         KA 10-00186

defendant expressed toward the victim for having identified him in the
photograph as a registered sex offender.

     Contrary to defendant’s further contention, the evidence is
legally sufficient to establish that he was “aided by two or more
persons actually present” in causing serious physical injury to the
victim (Penal Law § 120.07; see generally Bleakley, 69 NY2d at 495).
A friend of defendant who was staying in his apartment at the time of
the assault testified that he observed defendant and five other people
hitting the victim while he was on the ground. Similar testimony was
given by another witness. Such testimony, accepted as true,
established that there were at least two other people “in the
immediate vicinity of the crime and [that they were] capable of
rendering immediate assistance to [defendant]” (People v Rivera, 71
AD3d 701, 702). Further, based on our review of the record, we cannot
conclude that the testimony of those witnesses was “so inconsistent or
unbelievable as to render it incredible as a matter of law” (People v
Witherspoon, 66 AD3d 1456, 1457, lv denied 13 NY3d 942 [internal
quotation marks omitted]; see People v Black, 38 AD3d 1283, 1285, lv
denied 8 NY3d 982). Viewing the evidence in the light most favorable
to the People (see People v Contes, 60 NY2d 620, 621), we conclude
that there was a “ ‘valid line of reasoning and permissible inferences
[that] could lead a rational person’ to convict” defendant of gang
assault in the first degree (People v Santi, 3 NY3d 234, 246; see
People v Sanchez, 13 NY3d 554, 566, rearg denied 14 NY3d 750).

     Viewing the evidence in light of the elements of the crime as
charged to the jury (see People v Danielson, 9 NY3d 342, 349), we
reject defendant’s contention that the verdict is against the weight
of the evidence (see generally Bleakley, 69 NY2d at 495). Although
defendant contends that the similar testimony of his friend and
another witness is not worthy of belief, it is well settled that
issues relating to the credibility of witnesses are primarily within
the province of the jury, which observed and heard the witnesses (see
People v Massey, 61 AD3d 1433, lv denied 13 NY3d 746; People v
Sorrentino, 12 AD3d 1197, lv denied 4 NY3d 748).

     Defendant failed to preserve for our review his further
contention that County Court erred in failing to give a limiting
instruction with respect to the evidence establishing that the victim
posted defendant’s photograph and identified him as a sex offender
(see People v Dandridge, 26 AD3d 779, 780). We decline to exercise
our power to review that contention as a matter of discretion in the
interest of justice (see CPL 470.15 [6] [a]). Defendant also failed
to preserve for our review his contention that he was improperly
penalized for exercising his right to a jury trial (see People v Dorn,
71 AD3d 1523). In any event, that contention is without merit.
“[T]he mere fact that a sentence imposed after trial is greater than
that offered in connection with plea negotiations is not proof that
defendant was punished for asserting his right to trial” (People v
                                 -3-                          454.1
                                                        KA 10-00186

Murphy, 68 AD3d 1730, 1731, lv denied 14 NY3d 843 [internal quotation
marks omitted]). Finally, the sentence is not unduly harsh or severe.




Entered:   May 6, 2011                         Patricia L. Morgan
                                               Clerk of the Court
