| People v Trinidad |
| 2013 NY Slip Op 04159 [107 AD3d 1432] |
| June 7, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vEduardo Trinidad, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.),rendered May 4, 2010. The judgment convicted defendant, upon a jury verdict, of murderin the second degree, attempted robbery in the first degree, and criminal possession of aweapon 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 upon a juryverdict of murder in the second degree (Penal Law § 125.25 [3] [felony murder]),attempted robbery in the first degree (§§ 110.00, 160.15 [2]), and criminalpossession of a weapon in the second degree (§ 265.03 [3]). Defendant'scontention that County Court abused its discretion in admitting in evidence photographsof the victim's fatal injuries is unpreserved for our review because he made only ageneral objection to the admission of the photographs at trial (see People v Dickerson, 42AD3d 228, 236-237 [2007], lv denied 9 NY3d 960 [2007]; see generally People v Shire,77 AD3d 1358, 1359 [2010], lv denied 15 NY3d 955 [2010]). In any event,the court did not abuse its discretion in admitting the photographs in evidence (see People v Williams, 28AD3d 1059, 1060 [2006], affd 8 NY3d 854 [2007]; People v Hayes, 71 AD3d1477, 1477-1478 [2010], lv denied 15 NY3d 751 [2010]). "Photographicevidence should be excluded only if its sole purpose is to arouse the emotions of the juryand to prejudice the defendant" (People v Pobliner, 32 NY2d 356, 370 [1973],rearg denied 33 NY2d 657 [1973], cert denied 416 US 905 [1974]), andthat is not the case here. The photographs were properly admitted for a number ofpurposes, including to assist the jury in understanding the Medical Examiner's testimonyconcerning the victim's gunshot wound (see Hayes, 71 AD3d at 1477-1478).
Defendant failed to preserve for our review his further contention that, in sentencinghim, the court penalized him for exercising the right to a jury trial, inasmuch as defendantfailed to raise that contention at sentencing (see People v Stubinger, 87 AD3d 1316, 1317 [2011], lvdenied 18 NY3d 862 [2011]). In any event, that contention lacks merit because"there is no indication in the record before us that the sentencing court acted in avindictive manner based on defendant's exercise of the right to a trial" (id.[internal quotation marks omitted]; cf. People v Barone, 101 AD3d 585, 587 [2012];People v Cox, 122 AD2d 487, 489 [1986]; People v Slobodan, 67 AD2d630, 630 [1979]). We do not find defendant's sentence to be otherwise harsh or severe,and we decline to reduce it on that ground (see CPL 470.15 [6] [b]).[*2]
Additionally, viewing the evidence in the lightmost favorable to the prosecution (see People v Danielson, 9 NY3d 342, 349 [2007]), weconclude that it is legally sufficient to establish beyond a reasonable doubt that thedefendant acted in concert with and intentionally aided his companions in committing thecrime of attempted robbery in the first degree (see People v Roberts, 64 AD3d 796, 797 [2009]; People v Mathis, 60 AD3d697, 698 [2009], lv denied 12 NY3d 856 [2009]; People vWitherspoon, 300 AD2d 605, 605 [2002], lv denied 99 NY2d 634 [2003]),and to support the conviction of felony murder "based on the commission of thatpredicate crime" (Roberts, 64 AD3d at 797). "Accessorial liability requires onlythat defendant, acting with the mental culpability required for the commission of thecrime, intentionally aid another in the conduct constituting the offense" (People v Molson, 89 AD3d1539, 1539 [2011], lv denied 18 NY3d 960 [2012] [internal quotation marksomitted]; see Penal Law § 20.00). Here, we conclude that there wasevidence from which the jury could have reasonably inferred that defendant and hisaccomplices shared "a common purpose and a collective objective" (People vCabey, 85 NY2d 417, 422 [1995]). Viewing the evidence in light of the elements ofthe crimes of murder in the second degree and attempted robbery in the first degree ascharged to the jury (see Danielson, 9 NY3d at 349), we further conclude that theverdict with respect to those crimes is not against the weight of the evidence (seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]). Present—Smith, J.P.,Fahey, Carni, Sconiers and Whalen, JJ.