| People v Peoples |
| 2009 NY Slip Op 06983 [66 AD3d 1419] |
| October 2, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v MauricePeoples, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Shawn P. Hennessy of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Shirley Troutman, J.), rendered January14, 2008. The judgment convicted defendant, upon a jury verdict, of murder in the second degreeand criminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him after a jury trial of, interalia, murder in the second degree (Penal Law § 125.25 [1]). Defendant failed to preservefor our review his contention that County Court erred in failing to instruct the jury that a witnesswas an accomplice as a matter of law, thus requiring corroboration of the testimony of thatwitness (see People v Fortino, 61AD3d 1410, 1411 [2009]; People vMontanez, 57 AD3d 1366, 1367 [2008], lv denied 12 NY3d 857 [2009]; People v Taylor, 57 AD3d 1518[2008], lv denied 12 NY3d 822 [2009]). "In any event, the failure of the court to givethat instruction is of no moment, inasmuch as the testimony of the witness was in fact amplycorroborated" (Fortino, 61 AD3d at 1411; see People v Smith-Merced, 50 AD3d 259 [2008], lv denied10 NY3d 939 [2008]; People v White, 81 AD2d 486, 488-489 [1981]). Defendantalso failed to preserve for our review his contention that he was deprived of a fair trial byprosecutorial misconduct on summation (see CPL 470.05 [2]; People v Romero, 7 NY3d 911[2006]; People v Smith, 32 AD3d1291, 1292 [2006], lv denied 8 NY3d 849 [2007]), and that contention is withoutmerit in any event. Contrary to defendant's final contention, the sentence is not unduly harsh orsevere. Present—Scudder, P.J., Hurlbutt, Martoche, Smith and Centra, JJ.