PEOPLE v. WALDRIFF (2007)

On appeal from a judgment convicting him upon a jury verdict of insurance fraud in the fourth degree (Penal Law § 176.15) and attempted grand larceny in the fourth degree (§§ 110.00, 155.30[1] ), defendant contends that County Court erred in charging the jury that, “if [it finds] the defendant not guilty on one charge, it would be inconsistent to find him guilty on the other charge.   However, [it] could find him guilty on both charges.”   According to defendant, the court thereby “essentially tethered” the two charges.   We reject that contention.   Viewing the jury charge “as a whole against the background of the evidence produced at the trial” (People v. Andujas, 79 N.Y.2d 113, 118, 580 N.Y.S.2d 719, 588 N.E.2d 754;  see People v. McDaniels, 19 A.D.3d 1071, 796 N.Y.S.2d 484, lv. denied 5 N.Y.3d 830, 804 N.Y.S.2d 45, 837 N.E.2d 744), we conclude that the charge was proper (see People v. Coleman, 70 N.Y.2d 817, 819, 523 N.Y.S.2d 433, 517 N.E.2d 1319;  People v. Jones, 8 A.D.3d 1024, 778 N.Y.S.2d 401, lv. denied 3 N.Y.3d 676, 784 N.Y.S.2d 14, 817 N.E.2d 832;  cf. People v. Murphy, 188 A.D.2d 1061, 592 N.Y.S.2d 1009).   Defendant failed to preserve for our review his contention that the People failed to present evidence to corroborate the testimony of the accomplice (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Padro, 75 N.Y.2d 820, 552 N.Y.S.2d 555, 551 N.E.2d 1233, rearg. denied 75 N.Y.2d 1005, 557 N.Y.S.2d 312, 556 N.E.2d 1119, rearg. dismissed 81 N.Y.2d 989, 599 N.Y.S.2d 797, 616 N.E.2d 152) and, in any event, that contention is without merit (see People v. Giguere, 261 A.D.2d 941, 690 N.Y.S.2d 354, lv. denied 93 N.Y.2d 1018, 697 N.Y.S.2d 577, 719 N.E.2d 938).   Finally, the evidence is legally sufficient to support the conviction, and the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed and the matter is remitted to Niagara County Court for proceedings pursuant to CPL 460.50(5).

MEMORANDUM: