PEOPLE v. PEOPLES (2009)

Defendant appeals from a judgment convicting him after a jury trial of, inter alia, murder in the second degree (Penal Law § 125.25[1] ). Defendant failed to preserve for our review his contention that County Court erred in failing to instruct the jury that a witness was an accomplice as a matter of law, thus requiring corroboration of the testimony of that witness (see People v. Fortino, 61 A.D.3d 1410, 1411, 876 N.Y.S.2d 811; People v. Montanez, 57 A.D.3d 1366, 1367, 870 N.Y.S.2d 685, lv denied 12 N.Y.3d 857, 881 N.Y.S.2d 668, 909 N.E.2d 591; People v. Taylor, 57 A.D.3d 1518, 869 N.Y.S.2d 710, lv denied 12 N.Y.3d 822, 881 N.Y.S.2d 29, 908 N.E.2d 937). “In any event, the failure of the court to give that instruction is of no moment, inasmuch as the testimony of the witness was in fact amply corroborated” (Fortino, 61 A.D.3d at 1411, 876 N.Y.S.2d 811; see People v. Smith-Merced, 50 A.D.3d 259, 854 N.Y.S.2d 386, lv denied 10 N.Y.3d 939, 862 N.Y.S.2d 346, 892 N.E.2d 412; People v. White, 81 A.D.2d 486, 488-489, 442 N.Y.S.2d 300). Defendant also failed to preserve for our review his contention that he was deprived of a fair trial by prosecutorial misconduct on summation (see CPL 470.05[2]; People v. Romero, 7 N.Y.3d 911, 828 N.Y.S.2d 274, 861 N.E.2d 89; People v. Smith, 32 A.D.3d 1291, 1292, 821 N.Y.S.2d 356, lv denied 8 N.Y.3d 849, 830 N.Y.S.2d 708, 862 N.E.2d 800), and that contention is without merit in any event. Contrary to defendant's final contention, the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: