| People v Waldriff |
| 2007 NY Slip Op 10338 [46 AD3d 1448] |
| December 21, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v DavidWaldriff, Appellant. |
—[*1] Matthew J. Murphy, III, District Attorney, Lockport (Thomas H. Brandt of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Peter L. Broderick, Sr., J.), renderedOctober 26, 2006. The judgment convicted defendant, upon a jury verdict, of insurance fraud inthe fourth degree and attempted grand larceny in the fourth degree.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously affirmed and the matter is remitted to Niagara County Court for proceedingspursuant to CPL 460.50 (5).
Memorandum: On appeal from a judgment convicting him upon a jury verdict of insurancefraud in the fourth degree (Penal Law § 176.15) and attempted grand larceny in the fourthdegree (§§ 110.00, 155.30 [1]), defendant contends that County Court erred incharging the jury that, "if [it finds] the defendant not guilty on one charge, it would beinconsistent to find him guilty on the other charge. However, [it] could find him guilty on bothcharges." According to defendant, the court thereby "essentially tethered" the two charges. Wereject that contention. Viewing the jury charge "as a whole against the background of theevidence produced at the trial" (People v Andujas, 79 NY2d 113, 118 [1992]; see People v McDaniels, 19 AD3d1071 [2005], lv denied 5 NY3d 830 [2005]), we conclude that the charge was proper(see People v Coleman, 70 NY2d 817, 819 [1987]; People v Jones, 8 AD3d 1024 [2004], lv denied 3 NY3d676 [2004]; cf. People v Murphy, 188 AD2d 1061 [1992]). Defendant failed to preservefor our review his contention that the People failed to present evidence to corroborate thetestimony of the accomplice (see People v Gray, 86 NY2d 10, 19 [1995]; People vPadro, 75 NY2d 820 [1990], rearg denied 75 NY2d 1005 [1990], rearg dismissed81 NY2d 989 [1993]) and, in any event, that contention is without merit (see People vGiguere, 261 AD2d 941 [1999], lv denied 93 NY2d 1018 [1999]). Finally, theevidence is legally sufficient to support the conviction, and the verdict is not against the weightof the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).Present—Hurlbutt, J.P., Martoche, Fahey, Peradotto and Green, JJ.