Opinion
March 16, 1993
Appeal from the Supreme Court, Bronx County (Joseph A. Cerbone, J.).
The evidence was sufficient (People v. Contes, 60 N.Y.2d 620, 621), and the verdict was not against the weight of the evidence (People v. Bleakley, 69 N.Y.2d 490, 495), in view of the testimony of both the shooting victim and a witness who did not know defendant placing defendant alongside the shooters in a firing stance with a gun in his hand. Moreover, even if defendant did not actually hold a weapon, his accessorial culpability for its possession, including his intent, was established from the surrounding circumstances (see, People v. Armistead, 178 A.D.2d 607, 608, lv denied 79 N.Y.2d 943), in view of the undisputed testimony that defendant approached the victim, pulled him aside, accused him of killing one of defendant's associates, flushed him out by verbally identifying him for the unapprehended armed men accompanying defendant, and stood alongside the men while the shooting took place (see, People v. Pittman, 189 A.D.2d 918). Cases relied upon by defendant in which unarmed defendants were found lacking in the culpable mental state required of codefendants charged with specific intent crimes (e.g., People v La Belle, 18 N.Y.2d 405, 411-412; People v. Rivera, 176 A.D.2d 510, 511, lv denied 79 N.Y.2d 863; People v. Akptotanor, 158 A.D.2d 694, affd 76 N.Y.2d 1000) are therefore distinguishable.
We have considered the claim of repugnancy even though not preserved (see, People v. Sanchez, 128 A.D.2d 377, 379), and find it to be without merit (see, People v. Higdon, 162 A.D.2d 957, 958, lv denied 76 N.Y.2d 893). Defendant's remaining contentions are unpreserved, and, in any event, also without merit (see, CPL 300.30; 300.40).
Concur — Sullivan, J.P., Rosenberger, Kupferman and Asch, JJ.