         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
441
KA 10-00012
PRESENT: SCUDDER, P.J., SMITH, LINDLEY, GREEN, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MARVIN J. SNYDER, DEFENDANT-APPELLANT.


CHARLES J. GREENBERG, BUFFALO, 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 County Court abused its discretion in
consolidating for trial defendant’s indictment with those of two
codefendants. We reject that contention. All three codefendants were
part of a group that assaulted the same victim, and the evidence
against them was virtually identical. Contrary to defendant’s
contention, there were no irreconcilable conflicts between the various
defense theories (see generally People v Mahboubian, 74 NY2d 174, 184-
185; People v Roland, 283 AD2d 965, lv denied 96 NY2d 924). Although
none of the codefendants testified at trial, the primary defense of
defendant and one of the codefendants was that another individual who
was not a defendant in the case had alone caused the victim’s injuries
by repeatedly stomping on his head. The remaining codefendant claimed
that she was not anywhere near the victim when he was beaten.
Defendant also raised a justification defense, but that defense was
not inconsistent with any of the other defenses asserted at trial.
Moreover, the three codefendants did not accuse each other of the
crime, and none of their attorneys acted as a second prosecutor
against another codefendant. Under the circumstances, we conclude
that the court did not abuse its discretion in consolidating the
indictments for trial (see People v Buccina, 62 AD3d 1252, 1253, lv
denied 12 NY3d 913; People v Wilburn, 50 AD3d 1617, 1618, lv denied 11
NY3d 742).

     We reject the further contention of defendant that the evidence
is legally insufficient to establish that he caused the victim’s
                                 -2-                           441
                                                         KA 10-00012

injuries (see generally People v Bleakley, 69 NY2d 490, 495). Two
prosecution witnesses testified that they observed defendant beating
or kicking the victim as he lay defenseless on the ground. Another
witness testified that defendant was among a group of people that
surrounded the victim during the beating, although she admitted that
she was uncertain which individuals took part in the beating. Defense
counsel vigorously attacked the credibility of those witnesses, but it
cannot be said that the testimony in question is incredible as a
matter of law (see People v Williams, 81 AD3d 1281; People v Nilsen,
79 AD3d 1759). 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, quoting
People v Williams, 84 NY2d 925, 926). In addition, 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 conclude that the
verdict is not against the weight of the evidence (see Bleakley, 69
NY2d at 495).

     Given the serious nature of the injuries inflicted upon the
victim, who sustained permanent brain damage, and considering
defendant’s criminal history, we conclude that the sentence is not
unduly harsh or severe. We have reviewed defendant’s remaining
contentions and conclude that they lack merit.




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