The court's finding was based on legally sufficient evidence and was not against the weight of the evidence. The evidence established the requisite element of acting in concert with at least four other persons (Penal Law §§ 240.05; 240.10). Testimony that appellant, who was wearing blue clothing associated with the "Crips" gang, was engaged in a punching and kicking fight with an individual wearing red, associated with the "Bloods" gang, in extremely close spatial and temporal proximity to a battle between large groups of "Crips" ; and "Bloods", warranted the reasonable inference that defendant was a participant in the gang fight.
The court correctly found that a statement by appellant was part of the res gestae and was not a custodial statement requiring statutory notice. Appellant did not challenge the court's interpretation of a police officer's testimony as signifying that appellant made this statement in the course of the criminal acts.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.