| People v Smith-Merced |
| 2008 NY Slip Op 02883 [50 AD3d 259] |
| April 1, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Robert Smith-Merced, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Britta Gilmore of counsel), forrespondent.
Judgment, Supreme Court, New York County (Lewis Bart Stone, J.), rendered March 29,2005, as amended December 12, 2005, convicting defendant, after a jury trial, of grand larceny inthe second degree and 34 counts of criminal possession of a forged instrument in the seconddegree, and sentencing him to an aggregate term of 7
Defendant did not preserve his claim that the court should have instructed the jury thatcertain prosecution witnesses were accomplices as a matter of law and that their testimonyrequired corroboration, and we decline to review it in the interest of justice. As an alternativeholding, we find that the absence of such a charge was harmless in light of the very extensivecorroborating evidence (see e.g. People v Schwartz, 21 AD3d 304, 307 [2005], lv denied 6NY3d 845 [2006]), including highly incriminating physical evidence recovered from defendant'sresidence that unmistakably linked him to a check-counterfeiting scheme.
Defendant's claim that his counsel rendered ineffective assistance by failing to request anaccomplice charge is unreviewable because, in the context of this case, it involves mattersoutside the record concerning counsel's strategy (see People v Rivera, 71 NY2d 705, 709[1988]; People v Love, 57 NY2d 998 [1982]). On the existing record, to the extent itpermits review, we find that defendant received effective assistance under the state and federalstandards (see People v Benevento, 91 NY2d 708, 713-714 [1998]; see alsoStrickland v Washington, 466 US 668 [1984]). Counsel could have reasonably found such acharge to be counterproductive, in that it might have focused the jury's attention not on theunreliability of the accomplices, but on defendant's accessorial liability and the strength of thecorroborating evidence. In the alternative, counsel's failure to request an accomplice charge didnot affect the outcome of the trial or cause defendant any prejudice.
The court properly admitted limited evidence of uncharged crimes as background, givendefendant's theory of defense (see People v Vails, 43 NY2d 364 [1977]). To the extentthere was [*2]any error, it was harmless in view of theoverwhelming evidence of guilt. Defendant's constitutional claim is unpreserved and withoutmerit. Concur—Lippman, P.J., Tom, Williams and Acosta, JJ.