| People v Campbell |
| 2014 NY Slip Op 04642 [118 AD3d 1464] |
| June 20, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vShannon J. Campbell, Also Known as John Doe, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Jane I. Yoon of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Erin Tubbs of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Daniel J. Doyle, J.),rendered August 20, 2009. The judgment convicted defendant, upon a jury verdict, ofrape in the first degree (two counts), criminal sexual act in the first degree (two counts)and assault in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment that convicted him upon a juryverdict of, inter alia, two counts of rape in the first degree (Penal Law§ 130.35 [1]). Viewing the evidence in light of the elements of the crimes ascharged to the jury (see People vDanielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not againstthe weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495[1987]). While the record establishes that the victim was able to provide only a generaldescription of her attackers and her DNA was not detected on the exterior of the condommatching defendant's DNA, the jury was entitled to infer from the circumstances that thecondom matching defendant's DNA was left at the scene when the crime was committed(see generally People vGibson, 74 AD3d 1700, 1703 [2010], affd 17 NY3d 757 [2011]; People v Dearmas, 48 AD3d1226, 1228 [2008], lv denied 10 NY3d 839 [2008]; People v Rush,242 AD2d 108, 110 [1998], lv denied 92 NY2d 860 [1998], reconsiderationdenied 92 NY2d 905 [1998]).
We further reject defendant's contention that he was unduly prejudiced by a jointtrial. Specifically, defendant contends that his "defense was constrained by hiscodefendant's decision to assert an alibi defense" because the "jury might [have]assume[d] that his defense . . . rises or falls with the co[ ]defendant's alibiclaim," and that defendant was "inhibited from [testifying], since his codefendant wouldnot be bound by any Sandoval ruling." In People v Cardwell (78 NY2d996 [1991]), the Court of Appeals reiterated its "two-part test for determining whetherseverance is required, stating that 'severance is compelled where the core of each defenseis in irreconcilable conflict with the other and where there is a significant danger, as bothdefenses are portrayed to the trial court, that the conflict alone would lead the jury toinfer defendant's guilt' " (id. at 997-998).
[*2] Here, the defenses of defendant and his codefendantdid not pose an "irreconcilable conflict" (id. at 998). Specifically, the codefendantclaimed that he did not know defendant, and he and defendant each denied having hadsexual contact with anyone near the subject scene at any time, including with the victimon the night in question. Similarly, neither of the codefendant's alibi witnesses implicateddefendant in any way. Defendant thus failed to demonstrate that the core of hiscodefendant's alibi defense was in irreconcilable conflict with his own defense, and thatthere was a significant danger that the conflict would lead the jury to infer his guilt (see People v Watkins, 10AD3d 665, 665-666 [2004], lv denied 3 NY3d 761 [2004]; see alsoPeople v Ortiz, 262 AD2d 988, 988 [1999], lv denied 94 NY2d 827[1999]).
Contrary to defendant's further contention, "he did not establish his entitlement toseverance on the ground that he would have been subjected to prejudicialcross-examination by the attorney for his codefendant had defendant testified" (People v Clark, 66 AD3d1489, 1489 [2009], lv denied 13 NY3d 906 [2009]). " 'At no stage ofthe proceedings [did] defendant establish[ ] that his potential testimony would havegiven the codefendant an incentive to impeach his credibility' " (id.).
Finally, defendant's sentence is not unduly harsh or severe. Defendant failed topreserve for our review his further contention that, in sentencing defendant, SupremeCourt penalized him for exercising his right to a jury trial (see People v Stubinger, 87AD3d 1316, 1317 [2011], lv denied 18 NY3d 862 [2011]). In any event," '[t]he mere fact that a sentence imposed after trial is greater than that offered inconnection with plea negotiations is not proof that defendant was punished for assertinghis right to trial' " (id.). Indeed, there is no indication in the record that"the court was motivated by 'retaliation or vindictiveness' in sentencing defendantfollowing the trial" (People vFlinn, 98 AD3d 1262, 1264 [2012], affd 22 NY3d 599 [2014], reargdenied 23 NY3d 940 [2014]). Present—Centra, J.P., Lindley, Sconiers,Valentino and DeJoseph, JJ.