| People v Mitchell |
| 2009 NY Slip Op 09495 [68 AD3d 1019] |
| December 15, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Jerome Mitchell, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y.Brodt, and John F. McGoldrick of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Hanophy,J.), rendered June 28, 2004, convicting him of murder in the second degree (two counts), robberyin the first degree (two counts), criminal possession of a weapon in the second degree, andtampering with physical evidence, after a nonjury trial, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's convictions arose out of an incident involving three accomplices. One of theaccomplices testified at trial, another could not be found after diligent efforts, and the other wasnot called to testify by the People. The court granted the defendant's request for a missingwitness charge and failed to draw an inference against the People. Contrary to the defendant'scontention, the trier of fact is not required to draw a negative inference when a missing witnesscharge is given (see People v Savinon, 100 NY2d 192, 196 [2003]).
The defendant's contention that there was insufficient evidence to corroborate theaccomplice testimony also is without merit. Mitochondrial DNA evidence, which experttestimony established was less conclusive than nuclear DNA evidence, but highly informative,placed the defendant at the scene of the crime, which was a secluded private street. Thisevidence was sufficient to "assure that the accomplice[ ] [has] offered credible probativeevidence" (People v Besser, 96 NY2d 136, 143 [2001] [internal quotation marksomitted]; cf. People v Gomez, 39 AD3d 668 [2007] [corroborating evidence whichplaced the defendant at the scene of the crime, where the crime was a public shopping mall, wasinsufficient to corroborate testimony of the accomplice]).
Moreover, the testimony of the accomplice witness was not incredible as a matter of law, asit was not "manifestly untrue, physically impossible, contrary to experience, orself-contradictory" (People v Garafolo, 44 AD2d 86, 88 [1974] [internal quotation marksomitted]).
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish thedefendant's guilt beyond a [*2]reasonable doubt. Moreover, uponour independent review pursuant to CPL 470.15 (5), we are satisfied that the verdict of guilt wasnot against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).Skelos, J.P., Eng, Belen and Austin, JJ., concur.