Opinion
96 KA 17-00901
05-07-2021
The PEOPLE of the State of New York, Respondent, v. Jonathan ORTIZ, Defendant-Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER, EASTON THOMPSON KASPEREK SHIFFRIN LLP (BRIAN SHIFFRIN OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER, EASTON THOMPSON KASPEREK SHIFFRIN LLP (BRIAN SHIFFRIN OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, TROUTMAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, murder in the second degree ( Penal Law § 125.25 [3] ). The case arose from the shooting death of the victim during an attempted robbery. One of the People's witnesses was a participant in the crime who agreed to testify against defendant as part of a plea bargain. Supreme Court delivered an accomplice as a matter of fact charge with respect to that witness. Defendant contends that the court erred in failing to charge that the witness was an accomplice as a matter of law (see CPL 60.22 ; People v. Sage , 23 N.Y.3d 16, 23-24, 988 N.Y.S.2d 104, 11 N.E.3d 177 [2014] ). Defendant failed to preserve that contention for our review because he did not request such a charge nor did he object to the charge as given (see People v. Lipton , 54 N.Y.2d 340, 351, 445 N.Y.S.2d 430, 429 N.E.2d 1059 [1981] ; People v. Blume , 92 A.D.3d 1025, 1027, 937 N.Y.S.2d 724 [3d Dept. 2012], lv denied 19 N.Y.3d 957, 950 N.Y.S.2d 109, 973 N.E.2d 207 [2012] ), and we decline to review defendant's contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ). We note that the testimony of the witness in question was "amply corroborated" by other evidence ( People v. Fortino , 61 A.D.3d 1410, 1411, 876 N.Y.S.2d 811 [4th Dept. 2009], lv denied 12 N.Y.3d 925, 884 N.Y.S.2d 706, 912 N.E.2d 1087 [2009] ; see People v. Reed , 115 A.D.3d 1334, 1336, 982 N.Y.S.2d 670 [4th Dept. 2014], lv denied 23 N.Y.3d 1024, 992 N.Y.S.2d 807, 16 N.E.3d 1287 [2014] ), and the prosecutor did not dispute at trial that the witness's testimony needed to be corroborated. We reject defendant's further contention that he was denied effective assistance of counsel. Viewing the evidence, the law, and the circumstances of this case in totality and as of the time of the representation, we conclude that defendant received meaningful representation (see generally People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).