
    The People of the State of New York, Respondent, v Edwin Larios, Appellant.
    [806 NYS2d 726]
   Appeal by the defendant from a judgment of the County Court, Suffolk County (Farneti, J.), rendered May 17, 2002, convicting him of gang assault in the first degree and assault in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by vacating the conviction of assault in the third degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.

The defendant’s contention that the People failed to adduce legally sufficient proof of his guilt beyond a reasonable doubt is unpreserved for appellate review (see CPL 470.05 [2]; People v Gray, 86 NY2d 10, 19-21 [1995]). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt (see People v Adames, 308 AD2d 454 [2003]).

The prosecutor’s opening statement adequately described what the People intended to prove, and properly prepared the jury to resolve the factual issues at the trial (see CPL 260.30 [3]; People v Vera, 11 AD3d 716 [2004]; see also People v Kurtz, 51 NY2d 380, 384 [1980], cert denied 451 US 911 [1981]; People v Etoria, 266 AD2d 559 [1999]; People v Carter, 248 AD2d 722 [1998]; People v Vulpis, 173 AD2d 582 [1991]; People v Brown, 158 AD2d 461 [1990]; People v Tzatzimakis, 150 AD2d 512 [1989]).

The trial court properly denied the defendant’s motion to set aside the verdict pursuant to CPL 330.30 (3) based on newly-discovered evidence since the defendant failed to establish that the evidence could not have been produced at the trial with due diligence and was of such a character as to create a probability that had it been received in evidence it would have been more favorable to the defendant (see CPL 330.30 [3]; People v Salemi, 309 NY 208 [1955], cert denied 350 US 950 [1956]; People v Waller, 4 AD3d 440 [2004]; People v James, 299 AD2d 424 [2002]; People v Pacheco, 293 AD2d 629 [2002]; People v Wells, 289 AD2d 599 [2001]; People v Matthew, 274 AD2d 485 [2000]). The newly-discovered evidence proffered by the defendant merely impeached and contradicted former evidence, and thus did not warrant the granting of a new trial (see People v Paasewe, 276 AD2d 807 [2000]).

Upon our examination of the essential elements of assault in the first degree (Penal Law § 120.10 [1]) and assault in the second degree (Penal Law § 120.05 [2]) we find that the jury did not reach “an inherently self-contradictory verdict” in acquitting the defendant of those charges while convicting him of gang assault in the first degree and assault in the third degree (see People v Tucker, 55 NY2d 1, 8 [1981]; see also People v Loughlin, 76 NY2d 804, 806 [1990]). However, the charge of assault in the third degree should have been dismissed as a lesser-included offense and an inclusory concurrent count of gang assault in the first degree (see CPL 1.20 [37]; 300.40 [3] [b]; People v Corea, 25 AD3d 563 [2006] [decided herewith]; cf. People v King, 265 AD2d 678 [1999]). Although the defendant did not raise this issue on appeal, the interest of justice warrants that the defendant be granted the same relief as his codefendant (see People v Innis, 288 AD2d 236, 237 [2001]).

Contrary to the defendant’s contention, youthful offender treatment was not warranted (see People v Cruickshank, 105 AD2d 325, 334 [1985], affd sub nom. People v Dawn Maria C., 67 NY2d 625 [1986]; People v Cox, 4 AD3d 481, 482 [2004]; People v Chappelle, 282 AD2d 881 [2001]; People v Finnegan, 238 AD2d 520 [1997]). Schmidt, J.P., Santucci, Mastro and Rivera, JJ., concur.  