Opinion
2014-06-20
The PEOPLE of the State of New York, Respondent, v. Shannon J. CAMPBELL, also known as John Doe, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (Jane I. Yoon of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Erin Tubbs of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (Jane I. Yoon of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Erin Tubbs of Counsel), for Respondent.
PRESENT: CENTRA, J.P., LINDLEY, SCONIERS, VALENTINO, and DeJOSEPH, JJ.
MEMORANDUM:
Defendant appeals from a judgment that convicted him upon a jury verdict of, inter alia, two counts of rape in the first degree (Penal Law § 130.35[1] ). Viewing the evidence in light of the elements of the crimes 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). While the record establishes that the victim was able to provide only a general description of her attackers and her DNA was not detected on the exterior of the condom matching defendant's DNA, the jury was entitled to infer from the circumstances that the condom matching defendant's DNA was left at the scene when the crime was committed ( see generally People v. Gibson, 74 A.D.3d 1700, 1703, 902 N.Y.S.2d 289,affd.17 N.Y.3d 757, 929 N.Y.S.2d 34, 952 N.E.2d 1026;People v. Dearmas, 48 A.D.3d 1226, 1228, 851 N.Y.S.2d 805,lv. denied10 N.Y.3d 839, 859 N.Y.S.2d 398, 889 N.E.2d 85;People v. Rush, 242 A.D.2d 108, 110, 672 N.Y.S.2d 362,lv. denied92 N.Y.2d 860, 677 N.Y.S.2d 91, 699 N.E.2d 451,reconsideration denied92 N.Y.2d 905, 680 N.Y.S.2d 69, 702 N.E.2d 854).
We further reject defendant's contention that he was unduly prejudiced by a joint trial. Specifically, defendant contends that his “defense was constrained by his codefendant's decision to assert an alibi defense” because the “jury might [have] assume[d] that his defense ... rises or falls with the co[ ]defendant's alibi claim,” and that defendant was “inhibited from [testifying], since his codefendant would not be bound by any Sandoval ruling.” In People v. Cardwell, 78 N.Y.2d 996, 575 N.Y.S.2d 267, 580 N.E.2d 753, the Court of Appeals reiterated its “two-part test for determining whether severance is required, stating that ‘severance is compelled where the core of each defense is in irreconcilable conflict with the other and where there is a significant danger, as both defenses are portrayed to the trial court, that the conflict alone would lead the jury to infer defendant's guilt’ ” ( id. at 997–998, 575 N.Y.S.2d 267, 580 N.E.2d 753).
Here, the defenses of defendant and his codefendant did not pose an “irreconcilable conflict” ( id. at 998, 575 N.Y.S.2d 267, 580 N.E.2d 753). Specifically, the codefendant claimed that he did not know defendant, and he and defendant each denied having had sexual contact with anyone near the subject scene at any time, including with the victim on the night in question. Similarly, neither of the codefendant's alibi witnesses implicated defendant in any way. Defendant thus failed to demonstrate that the core of his codefendant's alibi defense was in irreconcilable conflict with his own defense, and that there was a significant danger that the conflict would lead the jury to infer his guilt ( see People v. Watkins, 10 A.D.3d 665, 665–666, 781 N.Y.S.2d 701,lv. denied3 N.Y.3d 761, 788 N.Y.S.2d 678, 821 N.E.2d 983;see also People v. Ortiz, 262 A.D.2d 988, 988, 692 N.Y.S.2d 626,lv. denied94 N.Y.2d 827, 702 N.Y.S.2d 597, 724 N.E.2d 389).
Contrary to defendant's further contention, “he did not establish his entitlement to severance on the ground that he would have been subjected to prejudicial cross-examination by the attorney for his codefendant had defendant testified” ( People v. Clark, 66 A.D.3d 1489, 1489, 885 N.Y.S.2d 797,lv. denied13 N.Y.3d 906, 895 N.Y.S.2d 320, 922 N.E.2d 909). “ ‘At no stage of the proceedings [did] defendant establish[ ] that his potential testimony would have given the codefendant an incentive to impeach his credibility’ ” (id.).
Finally, defendant's sentence is not unduly harsh or severe. Defendant failed to preserve for our review his further contention that, in sentencing defendant, Supreme Court penalized him for exercising his right to a jury trial ( see People v. Stubinger, 87 A.D.3d 1316, 1317, 929 N.Y.S.2d 813,lv. denied18 N.Y.3d 862, 938 N.Y.S.2d 869, 962 N.E.2d 294). In any event, “ ‘[t]he mere fact that a sentence imposed after trial is greater than that offered in connection with plea negotiations is not proof that defendant was punished for asserting his right to trial’ ” (id.). Indeed, there is no indication in the record that “the court was motivated by ‘retaliation or vindictiveness' in sentencing defendant following the trial” ( People v. Flinn, 98 A.D.3d 1262, 1264, 951 N.Y.S.2d 605,affd. 22 N.Y.3d 599, 984 N.Y.S.2d 283, 7 N.E.3d 496,rearg. denied23 N.Y.3d 940, 987 N.Y.S.2d 592, 10 N.E.3d 1147).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.