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People v. Anderson

Supreme Court of New York, Fourth Department

September 26, 2014

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
DERRICK ANDERSON, DEFENDANT-APPELLANT

Editorial Note:

This opinion is uncorrected and subject to revision before publication in the printed official reporter.

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SHERRY A. CHASE OF COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. SMALL OF COUNSEL), FOR RESPONDENT.

PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, AND LINDLEY, JJ.

OPINION

[993 N.Y.S.2d 217] Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns, J.), rendered May 1, 2012. The judgment convicted defendant, upon a jury verdict, of grand larceny in the third 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 of grand larceny in the third degree (Penal Law § 155.35 [1]). We reject defendant's contention that he was denied effective assistance of counsel. Defendant failed " to demonstrate the absence of strategic or other legitimate explanations" for defense counsel's failure to request an accomplice charge with respect to two of the People's witnesses (People v. Rivera, 71 N.Y.2d 705, 709, 525 N.E.2d 698, 530 N.Y.S.2d 52; see People v. Walker, 50 A.D.3d 1452, 1454, 856 N.Y.S.2d 775, lv denied 11 N.Y.3d 795, 896 N.E.2d 108, 866 N.Y.S.2d 622; see also People v. Smith-Merced, 50 A.D.3d 259, 259, 854 N.Y.S.2d 386, lv denied 10 N.Y.3d 939, 892 N.E.2d 412, 862 N.Y.S.2d 346).

Defendant failed to preserve for our review his contention that the testimony of the accomplices was not sufficiently corroborated and thus that the conviction is not supported by legally sufficient evidence (see People v. Matt, 78 A.D.3d 1616, 1617, 911 N.Y.S.2d 543,

Page 1550

lv denied 15 N.Y.3d 954, 942 N.E.2d 324, 917 N.Y.S.2d 113). In any event, we conclude that defendant's statement to the police and the victim's trial testimony constitute " sufficient evidence connecting defendant to the crime[], thereby satisfying the corroboration requirement" (id.; see CPL 60.22 [1]; People v. Reome, 15 N.Y.3d 188, 191-192, 933 N.E.2d 186, 906 N.Y.S.2d 788). Viewing the evidence in light of the elements of the crime as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 880 N.E.2d 1, 849 N.Y.S.2d 480), we further conclude that the jury did not fail to give the evidence the weight it should be accorded (see People v. Howard, 101 A.D.3d 1749, 1750, 956 N.Y.S.2d 784, lv denied 21 N.Y.3d 944, 990 N.E.2d 140, 968 N.Y.S.2d 6; see generally People v. Bleakley, 69 N.Y.2d 490, 495, 508 N.E.2d 672, 515 N.Y.S.2d 761).

Defendant also failed to preserve for our review his contention that Supreme Court's handling of a jury note denied him due process inasmuch as there was no objection or request with respect to the manner in which the court responded to the note (see People v. Kalb, 91 A.D.3d 1359, 1359, 938 N.Y.S.2d 705, lv denied 19 N.Y.3d 963, 973 N.E.2d 213, 950 N.Y.S.2d 115). In any event, that contention lacks merit inasmuch as the court's response to the note constituted " a meaningful response to the jury's request for information'" (People v. Jones, 52 A.D.3d 1252, 1252, 859 N.Y.S.2d 544, lv denied 11 N.Y.3d 738, 894 N.E.2d 660, 864 N.Y.S.2d 396; see generally CPL 310.30; People v. Malloy, 55 N.Y.2d 296, 302, 434 N.E.2d 237, 449 N.Y.S.2d 168, cert denied 459 U.S. 847, 103 S.Ct. 104, 74 L.Ed.2d 93). Finally, the sentence is not unduly harsh or severe.


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