Opinion
2012-12-21
The PEOPLE of the State of New York, Respondent, v. Damion W. CLARKE, Defendant–Appellant.
Peter J. Pullano, Rochester, for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
Peter J. Pullano, Rochester, for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., CENTRA, VALENTINO, WHALEN, AND MARTOCHE, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of manslaughter in the first degree (Penal Law § 125.20 [1] ). Contrary to defendant's contention, he was not denied effective assistance of counsel based on defense counsel's failure to request that the jury be charged with the issue whether a prosecution witness was an accomplice ( see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400). Even assuming, arguendo, that an accomplice charge was warranted ( see generally People v. Caban, 5 N.Y.3d 143, 152–153, 800 N.Y.S.2d 70, 833 N.E.2d 213), we conclude that “there was substantial corroboration for the accomplice testimony, and defendant would have derived no benefit from an accomplice charge” ( People v. Leffler, 13 A.D.3d 164, 165, 786 N.Y.S.2d 474,lv. denied4 N.Y.3d 800, 795 N.Y.S.2d 175, 828 N.E.2d 91). Because “ ‘the failure of [County Court] to give [an accomplice charge] is of no moment [where, as here,] the testimony of the witness was in fact amply corroborated’ ” ( People v. Peoples, 66 A.D.3d 1419, 1419, 885 N.Y.S.2d 819,lv. denied14 N.Y.3d 843, 901 N.Y.S.2d 150, 927 N.E.2d 571;see People v. Freeman, 78 A.D.3d 1505, 1506, 910 N.Y.S.2d 778,lv. denied15 N.Y.3d 952, 917 N.Y.S.2d 112, 942 N.E.2d 323), defense counsel was not ineffective for failing to request such a charge ( see Leffler, 13 A.D.3d at 165, 786 N.Y.S.2d 474).
Viewing the evidence in light of the elements of the crime of manslaughter in the first degree as charged to the jury ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that the verdict is not against the weight of the evidence ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). “Although a different result would not have been unreasonable, the jury was in the best position to assess the credibility of the witnesses and, on this record, it cannot be said that the jury failed to give the evidence the weight it should be accorded” ( People v. Orta, 12 A.D.3d 1147, 1147, 784 N.Y.S.2d 812,lv. denied4 N.Y.3d 801, 795 N.Y.S.2d 176, 828 N.E.2d 92). Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.