
    The People of the State of New York, Respondent, v Thomas Ozarowski, Russell DePasquale, Martin Miller, Marc Zakarin, Philip Benenati, Roger Santavicca and Thomas O’Neill, Appellants.
    Argued October 22, 1975;
    decided January 6, 1976
    
      
      Morton N. Wekstein and Stephen J. Schwartz for Thomas Ozarowski, Martin Miller, Marc Zakarin and Roger Santavicca, appellants.
    I. The People have failed to make out a prima facie case under the two charges of assault in the second degree; the People have failed to make out a prima facie case of conspiracy to commit assault in the second degree; since the person who struck the victim is not defendant, and none of defendants struck any person, the failure to make out a case in conspiracy mandates dismissal of the conspiracy count, and of the two substantive counts of assault in the second degree. (United States v Corallo, 413 F2d 1306; United States v Borelli, 336 F2d 376; United States v Falcone, 311 US 205; United States v De Cavalcante, 440 F2d 1264; United States v Aviles, 274 F2d 179; People v Friedman, 205 NY 161; People v Agron, 10 NY2d 130; People v May, 9 AD2d 508; People v Kay, 17 AD2d 773; People v Flack, 125 NY 324.) II. The trial court erred by admitting into evidence postconspiratorial and out-of-court statements of defendants not made in furtherance of the conspiracy, and in not limiting their application and use to defendant, in each case, who made such statement, but in using such statements generally against all defendants. (Krulewitch v United States, 336 US 440.) III. Under the facts of this case it was impermissible to use one defendant’s statements against other defendants irrespective of when made. (Winchester & Partridge Mfg. Co. v Creary, 116 US 161; Cuyler v McCartney, 40 NY 221; Miller v Barber, 66 NY 558; Lent v Shear, 160 NY 462; United States v Bentvena, 319 F2d 916; Oltman v Miller, 407 F2d 376; Standard Oil Co. of Cal. v Moore, 251 F2d 188; Flintkote Co. v Lysfjord, 246 F2d 368; 
      National Wrestling Alliance v Myers, 325 F2d 768; Ayers v Pastime Amusement Co., 283 F Supp 773.) IV. The matters complained of in points II and III hereof constitute a violation of defendants’ rights to confront witnesses, and to cross-examine them under the rule of Bruton v United States. (Bruton v United States, 391 US 123; People v Baker, 26 NY2d 169; People v Zavarro, 26 NY2d 846; People v Boone, 22 NY2d 476; People v Jackson, 22 NY2d 446; People v Cefaro, 23 NY2d 283; People v Pohl, 23 NY2d 290; People v Burrelle, 21 NY2d 265; People v Oldring, 42 AD2d 737; People v Cassisa, 34 AD2d 579.) V. The People’s case is founded entirely upon accomplice testimony which is not corroborated in the manner required by law. (People v Reddy, 261 NY 479; Ryan v People, 79 NY 593; People v Florentino, 197 NY 560; People v Yazum, 13 NY2d 302; People v Leyra, 1 NY2d 199.) VI. It was error for the trial court to receive in evidence the preliminary hearing testimony of Richard Capasso and of Thomas O’Neill. VII. There is no proof in the record sufficient to sustain the charge contained in the ninth count of the indictment. VIII. Article 75 of the revised Penal Law is unconstitutional since it denies to "young adults” the equal protection of law mandated by the Fourteenth Amendment, and the reformatory sentences in the instant case are therefor illegal sentences. (United States ex rel. Sero v Preiser, 377 F Supp 463.) IX. The denial by the court below of defendants’ motions for a change of venue constituted prejudicial error, and an invasion of their constitutional rights to a trial by jury, to a fair trial, and their rights to be accorded due process of law. (People v DiPiazza, 24 NY2d 342; People v Grout, 174 App Div 608; People v McLaughlin, 150 NY 365; People v Mleczko, 193 Misc 253; People v Pratt, 27 AD2d 199; People v Frankel, 149 Misc 195; People v Dormann, 180 Misc 160; People v Fernandez, 195 Misc 95.)
    
      Dante S. Alberi for Philip Benenati, appellant.
    The trial court in its decision found that defendant-appellant Benenati was not physically present at the locus of the assault and that by his actions he abandoned any conspiracy to commit an assault, if indeed any conspiracy existed. (People v May, 9 AD2d 508; People v Weiss, 290 NY 160; People v Fitzgerald, 156 NY 253; People v Razezicz, 206 NY 249; People v Woltering, 275 NY 51; People v Suffern, 267 NY 115.)
    
      J. Radley Herold for Thomas O’Neill, appellant.
    I. The court erred as a matter of law in admitting into evidence the statements of defendant-appellant at the preliminary hearing and to law enforcement officers. (Miranda v Arizona, 384 US 436; People v Failla, 14 NY2d 178; Wong Sun v United States, 371 US 471; People v Rodriguez, 11 NY2d 279.) II. The existence of a conspiracy cannot be proven by the statements of coconspirators. (Cuyler v McCartney, 40 NY 221; Lent v Shear, 160 NY 462.) III. No proof of conspiracy or accessorial conduct against defendant-appellant has been made out and therefore, counts one, two and ten must be dismissed as a matter of law. (People v Chaplin, 8 AD2d 286; People v Johnson, 18 AD2d 1017, 13 NY2d 1149; People v Smith, 196 Misc 304, 277 App Div 794, 301 NY 763; People v Marshall, 306 NY 223; People v Monaco, 14 NY2d 43; People v Weiss, 290 NY 160; People v King, 19 AD2d 656, 14 NY2d 718; People v May, 9 AD2d 508; People v Friedman, 205 NY 161.) IV. The court erred as a matter of law in not dismissing the counts charging criminal trespass in the third degree and possession of a weapon, dangerous instrument and appliance. (Matter of Luis C., 66 Misc 2d 907.) V. The sentence imposed on defendant-appellant was both excessive and illegal as a matter of law. (United States ex rel. Sero v Preiser, 372 F Supp 663.)
    
      James J. Duggan for Russell DePasquale, appellant.
    I. Neither accessorial nor conspiratorial conduct on the part of DePasquale was established, and hence his conviction on counts one, two and ten must be reversed. (People v Friedman, 205 NY 161; People v Monaco, 14 NY2d 43; People v Weiss, 290 NY 160; People v King, 19 AD2d 656, 14 NY2d 718; People v May, 9 AD2d 508.) II. It was error to use the postconspiratorial statements of others to inculpate DePasquale. III. The existence of a conspiracy cannot be provided by statements of coconspirators. (Cuyler v McCartney, 40 NY 221; Matter of Sabatini v Kirwan, 42 AD2d 1022.) IV. The material referred to in points II and III, supra, additionally violates the rule of Bruton v United States. (Delli Paoli v United States, 352 US 232; Bruton v United States, 391 US 123.) V. The People’s case is founded entirely upon accomplice testimony which is not corroborated in the manner required by law. VI. The court erred in admitting the preliminary hearing testimony of Richard Capasso and Thomas O’Neill. (People v Elliott, 172 NY 146.) VII. There was no evidence to prove the ninth count of the indictment against DePasquale. VIII. The sentence was excessive. IX. It was error to have denied the motion for a change of venue.
    
      Carl A. Vergari, District Attorney (Janet Cunard of counsel), for respondent.
    I. The guilt of defendants was proven beyond a reasonable doubt. (People v Ruberto, 10 NY2d 428; People v Yazum, 13 NY2d 302; People v Morhouse, 21 NY2d 66; People v Flack, 125 NY 324; People v Connolly, 253 NY 330; Foster v People, 50 NY 598; People v Osinski, 281 NY 129; People v La Belle, 18 NY2d 405; People v Wood, 10 AD2d 231; People v Ball, 283 App Div 285.) II. The crimes charged were properly pleaded. (People v Wiechers, 179 NY 459; People v Buchalter, 289 NY 181; People v McKane, 143 NY 455; Rubio v United States, 22 F2d 766; People v Sher, 68 Misc 2d 917; People v Winter, 288 NY 418.) III. The evidence was properly admitted. (People v Rullo, 31 NY2d 894; People v Anthony, 24 NY2d 696; Miranda v Arizona, 384 US 436; People v Rodney P, 21 NY2d 1; People v Yukl, 25 NY2d 585, 400 US 851.) IV. The motion for a change of venue was properly denied. (People v Culhane, 33 NY2d 90; People v DiPiazza, 24 NY2d 342; People v Lynch, 23 NY2d 262; People v Bonier, 189 NY 108; People v Speiser, 277 NY 342; United States ex rel. Sero v Preiser, 377 F Supp 463.)
   Fuchsberg, J.

These seven defendants, Thomas Ozarowski, Russell DePasquale, Martin Miller, Marc Zakarin, Philip Benenati, Roger Santavicca, and Thomas O’Neill, were all convicted of conspiracy in the third degree (Penal Law, § 105.05) for their joint participation in an act of violence which resulted in extraordinarily severe injury to their victim. Upon the basis of the conspiracy conviction, they were also convicted of two counts of assault in the second degree (Penal Law, § 120.05, subds 1, 2), three counts of possession of a dangerous weapon (Penal Law, § 265.05, subd 9, renum § 265.01, subd [2]; L 1974, ch 1041, § 3) and one count of criminal trespass in the third degree (Penal Law, § 140.10). All seven defendants were sentenced as youthful offenders (CPL art 720). Benenati and Zakarin were given probationary terms; Ozarowski, Miller, O’Neill, DePasquale and Santavicca received reformatory sentences of indeterminate length.

Among the contentions defendants raise on appeal is the assertion that the requisite specific intent to commit second-degree assault was not proved against each of them. In that regard, they urge that the finding of such intent made by the trial court, in this nonjury trial, was based on uncorroborated accomplice testimony and on postconspiracy statements which should not have been admitted against all defendants.

We affirm all the convictions for the reasons which follow.

In setting them out, it will be useful to outline the skein of events leading up to the assault. On March 1 and 2 of 1971, Russell DePasquale and Chester Ozarowski, the latter not a defendant in this case, were involved in separate altercations with different employees of Nathan’s, a fast-food restaurant located in the City of Yonkers. Each had been threatened by an employee with a bared knife or similar weapon; DePasquale had thrown a garbage can at his assailant in order to make good his escape. The evidence further indicated that there existed some sort of feud between the day shift at Nathan’s and a combination of young men of which Chester Ozarowski and Russell DePasquale were a part.

On the evening of March 2, members of this group gathered at the home of defendant Miller to discuss these incidents. DePasquale was present, but Chester Ozarowski was not. His brother, defendant Thomas Ozarowski, was there. Two witnesses, Joseph Artanis and Arlette Travalini, later testified that all of the defendants who are parties to this appeal were present in the apartment, save Santavicca. Artanis was an accomplice witness; Arlette was not.

Arlette, Artanis and other witnesses swore that all the six defendants present at Miller’s apartment left there to go to Nathan’s. In the lobby of the apartment house, they met Chester Ozarowski and two others, Gerard Fitzpatrick and Thomas Capasso. Arlette described how, while they were still in the lobby, Zakarin took a baseball bat from beneath his coat and handed it to Miller. Artanis testified that there were several baseball bats lying on a sofa in the room in Miller’s apartment itself when the decision to go to Nathan’s was made. Other witnesses, whose testimony is in substance undisputed, saw bats in the possession of various defendants that night.

They headed for Nathan’s in three cars. Santavicca was picked up en route by prearrangement. Arlette was dropped off at her home. When some of the defendants arrived at the planned meeting spot in a parking lot near Nathan’s, it was discovered that one of the cars had not arrived. Some of the defendants returned to check on the missing car; eventually all arrived at the appointed place. Their movements were coordinate.

Testimony as to what occurred after they reached Nathan’s is less clear. Miller apparently entered Nathan’s to provoke an incident; he ordered pizza, accepted it, and then ran out without paying for it. Nathan’s employees did not respond with either violence or threatened violence. An employee of Nathan’s so testified. Fitzpatrick, Benenati, and Capasso apparently went to a candy store nearby, found it closed, and then sat or stood near a wall from which they could see the garbage area behind Nathan’s.

At about that time, Artanis saw Selim Rabadi, an employee of Nathan’s night shift not known to defendants, exit from the rear of the restaurant pushing a garbage cart, saw Chester Ozarowski emerge from the garbage bin holding something behind his back, and then saw Chester swing a bat at Rabadi’s head. The only evidence of motivation for this act is the events already described.

Rabadi, as a result of that blow, which fractured his skull, is paralyzed on one side of his body and has lost his vision, much of his hearing, control over his bodily functions, and, to some extent, control over his emotional behavior. Nevertheless, he was able to take the stand, his doctor having testified that, within limits, he was capable of giving accurate testimony. Rabadi’s description of the attack was somewhat different from that of Artanis. He recalled that, before blacking out, a group of youths beat him from behind while one of them held him by the neck in front. His story fits with that told by defendant O’Neill.

O’Neill, who gave statements to the police favoring the prosecution, was called by the People at a preliminary hearing, during the course of which he changed his story drastically, characterizing his earlier statements as lies told to the police out of fear. On the other hand, at the trial itself, on cross-examination, his story, while still restrained, reverted to some of its original version. For instance, he there testified that, in the apartment, Thomas Ozarowski had stated that his brother Chester was planning to go to Nathan’s to "talk” to the employee who had assailed him, that Thomas had expressed the desire to go with Chester as he expected trouble, and that the entire group then indicated its desire to go with Chester for the same reason. O’Neill further testified that, once the group had reached Nathan’s, he and most of the others went straight to a garbage bin in the rear of the restaurant and hid there until Rabadi arrived to dump garbage, when he, O’Neill, arose from the bin behind the others, who were also leaving it as Rabadi retreated. He heard a thud, saw the body, and ran.

Indeed, all of the defendants fled from the shopping center after the incident. Although an eyewitness, one John O’Mara, could not identify them individually, he saw the group flight. Some of the defendants later denied to police that they had ever left Miller’s apartment that evening, but others of them made detailed statements, which led police to the locations where three baseball bats had been discarded. In addition, Santavicca told a school friend, Dennis De Lango, the next day, that "We think we killed a Spic last night”. De Lango, who was not otherwise involved, so testified and thus, by evidence admissible against Santavicca (People v Peller, 291 NY 438, 443; People v Gioia, 286 App Div 528), provided the necessary corroboration for the accomplice testimony as to the role of Santavicca, who was the only defendant to have joined the others after they left the apartment.

The rapid, continuous and related sequence of events on the night of the assault, the planful character of the group action, the immediacy with which their response followed the initial altercations, the fact that these were discussed at the meeting from which the adventure at Nathan’s took off, the fact that the defendants armed themselves with baseball bats in the expectation that their foes would use deadly knives, and the en masse nature of their deployment at Nathan’s were all telling circumstances which illuminated the events of the night of March 2. On the basis of all this proof it is, therefore, not surprising that the Trial Judge found the conclusion inescapable that there was a common plan or scheme hatched in Miller’s apartment that evening and that overt acts in furtherance of it took place (Penal Law, §§ 105.05, 105.20).

Accordingly, the more troubling question is not whether there was a conspiracy, but rather, what its goal was, for, in order to support a conviction of conspiracy in the third degree, that goal must have been a felony (Penal Law, § 105.05). In that connection, the defendants assert that, at most, the evidence falls short of proving the element of intent required for conviction of felonious assault, arguing that the proof supports only the existence of an agreement to go to Nathan’s to provoke a "fair fight” and that the baseball bats were taken along to be used in self-defense and only if opponents used knives as weapons. The difficulty with that argument is twofold. First, its emphasis on the form rather than the substance of the agreement between the defendants, does not alter its essentially factual character, whose determination adversely to defendants now stands affirmed by the Appellate Division. Second, the claim that the bats were taken along only for self-defense, a matter subject too to assessment for credibility, ignores subdivision 1 of section 35.15 of the Penal Law, which limits such a defense to situations in which defendants do not act as provocateurs.

However, that still leaves open the determination of whether the specific intent proved here supported the particular felonies towards which the indictment charges the conspiracy was directed. The People here were required to prove intent to commit the specific crimes charged against each of the defendants. Intent, like any other element of a crime, may be proved by circumstantial evidence. (People v Agron, 10 NY2d 130, 140; People v Weiss, 290 NY 160; People v May, 9 AD2d 508, 512; People v Leyra, 1 NY2d 199, 206; People v Taddio, 292 NY 488, 492.)

The inference of intent under the conspiracy doctrine presents special problems, however. As the United States Supreme Court has recently noted: "[W]e scrutinize the record for evidence of such intent with special care in a conspiracy case for, as we have indicated in a related context, 'charges of conspiracy are not to be made out by piling inference upon inference, thus fashioning ... a dragnet to draw in all substantive crimes.’ Direct Sales Co. v. United States, 319 U. S. 703, 711 (1943). See also Ingram v. United States, 360 U. S. 672, 680 (1959).” (Anderson v United States, 417 US 211, 224.)

Our own case law supports this principle. In distinguishing the conspiracy case from the ordinary case in which a defendant’s own intent may be inferred from his actions, we stated: "Attempting to link Hernandez to Agron’s acts upon the theory of conspiracy, the prosecution was required to prove a separate premeditated intent to kill on the part of Hernandez (People v. Weiss, 290 N. Y. 160; People v. Emieleta, 238 N. Y. 158; People v. May, 9 A D 2d 508). The present case is unlike the felony murder cases where mere intentional participation in the underlying felony renders all of the nonkiller participants equally guilty of first degree murder (People v. Wood, 8 N. Y. 2d 48, 51; People v. Emieleta, supra, at p. 163; People v. May, supra).” (People v Agron, 10 NY2d 130, 135, supra.)

In the Agron case, the evidence as to whether defendant Hernandez knew of Agron’s possession of a knife on the night in question was conflicting. We therefore refused to affirm Hernandez’ conviction on a conspiracy theory, since the facts which were used to show his intent did not exclude to a moral certainty all other possible conclusions (p 140). We did, however, sustain the conviction of defendant Agron, noting that his contention that he had only meant to injure and not to kill was of no avail: "This, of course, does not constitute a defense, since defendant is presumed to have intended the natural and necessary consequences of his acts (People v. Schmidt, 168 N. Y. 568, 574, 576). 'The weapon used and the vital part of the body on which the blow was inflicted justified the jury in finding that the defendant intended to take life.’ (People v. Schmidt, supra; People v. Emieleta, 238 N. Y. 158, 162, supra). ” (People v Agron, supra, 139.)

And we said in People v Weiss (290 NY 160, 171, supra): "The court charged that if Epstein and Weiss knew that Simmons had a dangerous weapon and it was their understanding that Simmons was merely to assault Leder with it, they would be responsible for the normal and necessary consequences of his act and it would not lie in their mouths to say that they had intended to have Leder assaulted and beaten with the weapon but that they did not intend to have him killed. That charge constituted a serious error of law”. (Emphasis added.)

What this sequence of legal propositions establishes is that, while the ultimate act of violence may be used by the trier of facts in making the inference of intent as to the defendant who actually struck the blow, that act is not determinative of the intent of the other conspirators. Thus, in the case before us, the question is not what Chester Ozarowski intended when he hit Selim Rabadi a crushing blow to the head, but rather whether Chester’s act was one intended by all of the others and one performed in furtherance of the conspiracy. While the nature of the blow is useful in imputing intent to do serious injury to Chester, it may not be used to infer such intent on the part of the others.

Therefore, in order to uphold the convictions here on both the first and second counts of assault in the second degree (Penal Law, § 120.05, subds 1, 2), the court below was required to find from the evidence of the conspiracy itself that each defendant had the specific intent to do "serious physical injury” as well as the intent to do "physical injury” by means of a dangerous instrument (Penal Law, § 10.00, subds 9, 10, respectively, define those terms; see Matter of Taylor, 62 Misc 2d 529; People v Rumaner, 45 AD2d 290; Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law, § 120.05, subd 2, p 342; cf. Penal Law of 1909, § 242, subd 4; People v Katz, 290 NY 361; People v Osinski, 281 NY 129; People v Ball, 283 App Div 285).

We think that the court below, sitting as the trier of the facts, was entitled to decide that each defendant formed the specific intent that one or more of their number should do such serious injury during the planned fight. Unlike the situation in the Agron case, there was here no doubt that all defendants knew Chester had a bat; indeed several of them had bats. These were not secreted from one another, but openly displayed and taken along in the presence of all. The surrounding circumstances make perfectly clear that a baseball game was not what the gang had in mind. Nor was their intent, any more than were its consequences, of any different character because those who shared it were youths rather than adults. It only requires, in addition, that it be logical to assume, on the basis of this concerted effort to start a fight while armed with bats, that nothing less than serious injury was intended. The court below concluded that this was the case, and we see no reason to disturb its conclusions.

On both the conspiracy and intent issues, as to each of the defendants, we further note that corroboration of an accomplice need not extend to every detail of such testimony; it is sufficient if it tends to connect each defendant with the crime (People v Daniels, 37 NY2d 624, 630, and cases cited therein; CPL 60.22, subd 1). By that standard, accomplice witnesses O’Neill, Fitzpatrick, and Artanis were more than amply corroborated, among other things, by the testimony of Arlette Travalini and Selim Rabadi.

We also note that one of the defendants, Benenati, raises one question different from those urged by his fellow defendants, i.e., renunciation. In doing so, he relies on the fact that, after arriving at the . shopping center, he wandered off with Fitzpatrick and Thomas Capasso in search of a candy store, although we note that he returned with them to their perch overlooking the garbage area of Nathan’s, which was the arena of the assault. Renunciation requires more than merely withdrawal from a conspiracy. It is an affirmative defense, and there must be a demonstration, inter alia, that a "substantial effort” was made to "prevent the commission” of the conspiratorial plan. (Penal Law, § 40.10, subd 1.) Since Benenati indisputably was present in the apartment where and when the conspiracy was formed, it appears difficult to question the finding that the defense has not been sustained.

Finally, the opinion of the trial court, fairly read, reveals that, while it utilized some details from postconspiratorial statements made by certain defendants to better present the issues arising from the checkerboard of facts here in perspective, in its legal analysis, it relied only on the relevant evidence in determining the guilt or innocence of each defendant.

Nor was the trial court’s sentencing of the defendants as youthful offenders violative of their constitutional rights. Although article 75 of the Penal Law, pursuant to which it acted, has been repealed since the sentencing (L 1974, ch 652, as amd by L 1974, ch 653, § 7), its repeal did not affect sentences already imposed. (L 1974, ch 653, § 10.) While the constitutionality of article 75 has been called into question by at least one court on equal protection grounds (United States ex rel. Sero v Preiser, 506 F2d 1115, cert den 421 US 921; cf. People v Daniel J. S, 48 AD2d 665), that holding dealt exclusively with longer sentences mandated for youths than for adults on convictions of misdemeanors. The defendants here were punished far less severely than if they had been sentenced as adults for the same felonies of which they were found guilty. (CPL art 720.)

Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Cooke concur.

Order affirmed. 
      
      . An eighth defendant, Richard Strome, has not appealed. Others who were charged with participation in the alleged conspiracy were tried separately.
     
      
      . The evidence indicates that the plan was complete when the group left the apartment, and Santavicca joined in it when he arrived, ratifying, in effect, its purposes and acts. (Samara v United States, 263 F 12, 15-16; Lile v United States, 264 F2d 278, 281; People v Arnstein, 157 App Div 766, 770; People v Sher, 68 Misc 2d 917, 926.)
     
      
      . The Penal Law defines a dangerous instrument as "any instrument, article or substance * * * which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury.” (Penal Law, § 10.00, subd 13.) Clearly, under the circumstances here, a baseball bat qualifies as such a dangerous instrument. (See People v Rumaner, 45 AD2d 290, supra.) It is too obvious to need elaboration that when used outside its sports context, it is a dangerous instrument of the very type recognized as an effective weapon since primitive times.
     