| People v Brockington |
| 2017 NY Slip Op 00939 [147 AD3d 460] |
| February 7, 2017 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Tyshawn Brockington, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Marisa K. Cabrera of counsel),for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Christopher P. Marinelli of counsel), forrespondent.
Judgment, Supreme Court, New York County (Thomas A. Farber, J.), rendered June 26,2013, convicting defendant, after a jury trial, of murder in the second degree, burglary in the firstdegree and two counts of criminal possession of a weapon in the second degree, and sentencinghim to an aggregate term of 25 years to life, unanimously affirmed.
Defendant did not preserve his claim that the court should have submitted to the jury theissue of whether the prosecution's main witness was an accomplice in fact, whose testimonywould thus require corroboration (see CPL 60.22), and we decline to review it in theinterest of justice. The record does not support defendant's assertion that he joined in acodefendant's request for such a charge (see People v Buckley, 75 NY2d 843 [1990]). Atmost, defendant made a brief remark that appeared to support the codefendant's theory thatbecause of the witness's participation in the purchase, months before the murder, of whatultimately proved to be the alleged murder weapon, she remained an accomplice to possession ofthe weapon at the time of the murder. Thus, any preservation would be limited to that theory,which we find to be meritless. As an alternative holding, we reject defendant's entire argument onthe merits (see People v Jones, 73 NY2d 902, 903 [1989]). Although the witness heardher boyfriend, a codefendant, declare his intention to "smoke someone," she did not accompanyhim to the scene of the murder, she was not at or near that location before, during or after thecrime, and there is no evidence suggesting that the witness had any homicidal intent or that sheimportuned or intentionally aided either defendant in committing the crime. All of defendant'stheories under which the witness could be viewed as having participated in the charged crimesare unsupported and based on speculative inferences. In any event, any error in failing to deliveran accomplice corroboration charge was harmless (see People v Crimmins, 36 NY2d 230[1975]).
The court providently exercised its discretion in receiving evidence of defendant's Facebookpost, made one hour after the murder, which could be reasonably interpreted as at least indirectlyboasting about the crime by announcing that defendant's group had scored a victory over a rivalgroup (see generally People v Scarola, 71 NY2d 769, 777 [1988]). The jury was providedwith sufficient context in which to make such a interpretation, and the possibility of [*2]innocent interpretations did not go to the admissibility of theevidence, but to the weight to be accorded it by the trier of fact.
We perceive no basis for reducing the sentence. Concur—Friedman, J.P., Andrias,Moskowitz, Kapnick and Kahn, JJ.