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People v. Castagnaro

Appellate Division of the Supreme Court of New York, Second Department
Sep 29, 1986
123 A.D.2d 439 (N.Y. App. Div. 1986)

Opinion

September 29, 1986

Appeal from the County Court, Suffolk County (Rohl, J.).


Judgment affirmed.

Contrary to the defendant's contentions, the record discloses that defense counsel failed to register a proper and timely objection apprising the trial court of the issue now raised on appeal with respect to the court's charging the jury that prosecution witness Lawrence Iorizzo was an accomplice as a matter of law. Although now, on appeal, the defendant contends that defense counsel requested that the court modify its accomplice charge so as to instruct the jury that Iorizzo's status as an accomplice was for it to determine, as a factual question, the record supports no such assertion. Counsel never requested that Iorizzo's status as an accomplice be charged as a factual question for the jury to determine, nor did he offer a substantive legal argument apprising the court that the objection was premised upon the absence of evidence establishing Iorizzo's status as an accomplice. Thus, defense counsel failed to register a proper and timely objection to the court's charge with respect to Iorizzo and, therefore, no issue of law with respect thereto has been preserved for our review (CPL 470.05; People v Santiago, 108 A.D.2d 939; see, People v Nuccie, 57 N.Y.2d 818; People v Liccione, 50 N.Y.2d 850). Moreover, this case is distinguishable from People v Stafford, ( 57 A.D.2d 965). In Stafford, where a timely objection was registered, the court's error in charging that a prosecution witness was an accomplice "as a matter of law" was compounded by a further instruction which deprived the jury of its fact-finding function in assessing the existence and sufficiency of corroborative evidence supporting that prosecution witness's testimony.

We find, furthermore, that there was a sufficient quantity and quality of evidence supporting the jury's verdict. Viewing the evidence in a light most favorable to the People and giving it the benefit of every reasonable inference to be drawn therefrom, as we must on appeal, we conclude that the defendant's guilt was proven beyond a reasonable doubt (see, People v Malizia, 62 N.Y.2d 755, 757, cert denied 469 U.S. 932; People v Contes, 60 N.Y.2d 620, 621; People v Bigelow, 106 A.D.2d 448, 449). We decline to disturb the court's sentence and find that, under the circumstances, the court's decision to sentence the defendant to consecutive terms of imprisonment on counts three and nine of the indictment was not improper.

We have reviewed the defendant's remaining contentions and find them to be without merit. Lazer, J.P., Mangano, Brown and Weinstein, JJ., concur.


Summaries of

People v. Castagnaro

Appellate Division of the Supreme Court of New York, Second Department
Sep 29, 1986
123 A.D.2d 439 (N.Y. App. Div. 1986)
Case details for

People v. Castagnaro

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. FRANK CASTAGNARO…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Sep 29, 1986

Citations

123 A.D.2d 439 (N.Y. App. Div. 1986)