| People v Clarke |
| 2012 NY Slip Op 08920 [101 AD3d 1646] |
| December 21, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Damion W.Clarke, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Elma A. Bellini, J.), rendered September 5,2008. The judgment convicted defendant, upon a jury verdict, of manslaughter in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofmanslaughter in the first degree (Penal Law § 125.20 [1]). Contrary to defendant's contention,he was not denied effective assistance of counsel based on defense counsel's failure to request that thejury be charged with the issue whether a prosecution witness was an accomplice (see generallyPeople v Baldi, 54 NY2d 137, 147 [1981]). Even assuming, arguendo, that an accomplice chargewas warranted (see generally People vCaban, 5 NY3d 143, 152-153 [2005]), we conclude that "there was substantialcorroboration for the accomplice testimony, and defendant would have derived no benefit from anaccomplice charge" (People v Leffler, 13AD3d 164, 165 [2004], lv denied 4 NY3d 800 [2005]). Because " 'the failure of [CountyCourt] to give [an accomplice charge] is of no moment [where, as here,] the testimony of the witnesswas in fact amply corroborated' " (People vPeoples, 66 AD3d 1419, 1419 [2009], lv denied 14 NY3d 843 [2010]; see People v Freeman, 78 AD3d 1505,1506 [2010], lv denied 15 NY3d 952 [2010]), defense counsel was not ineffective for failingto request such a charge (see Leffler, 13 AD3d at 165).
Viewing the evidence in light of the elements of the crime of manslaughter in the first degree ascharged to the jury (see People vDanielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not against the weightof the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). "Although adifferent result would not have been unreasonable, the jury was in the best position to assess thecredibility of the witnesses and, on this record, it cannot be said that the jury failed to give the evidencethe weight it should be accorded" (People vOrta, 12 AD3d 1147, 1147 [2004], lv denied 4 NY3d 801 [2005]). Finally, thesentence is not unduly harsh or severe. Present—Scudder, P.J., Centra, Valentino, Whalen andMartoche, JJ.