Opinion
679 KA 21-01446
10-04-2024
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. AMBER L. ROCHE, DEFENDANT-APPELLANT.
PETER J. DIGIORGIO, JR., UTICA, FOR DEFENDANT-APPELLANT. JEFFREY S. CARPENTER, DISTRICT ATTORNEY, HERKIMER (MICHAEL T. JOHNSON OF COUNSEL), FOR RESPONDENT.
PETER J. DIGIORGIO, JR., UTICA, FOR DEFENDANT-APPELLANT.
JEFFREY S. CARPENTER, DISTRICT ATTORNEY, HERKIMER (MICHAEL T. JOHNSON OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., BANNISTER, MONTOUR, DELCONTE, AND HANNAH, JJ.
Appeal from a judgment of the Herkimer County Court (John H. Crandall, J.), rendered September 30, 2021. The judgment convicted defendant, upon a jury verdict, of murder in the second degree, arson in the first degree and arson in the second degree (seven counts).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: In this prosecution arising from a fire that was intentionally set in an apartment building, resulting in a fatality, defendant appeals from a judgment convicting her, upon a jury verdict, of murder in the second degree (Penal Law § 125.25 [3]), arson in the first degree (§ 150.20 [1]), and seven counts of arson in the second degree (§ 150.15). We affirm.
Contrary to defendant's contention, we conclude that County Court properly denied that part of her omnibus motion seeking to dismiss as multiplicitous the counts of the indictment charging arson in the second degree. Those counts are not multiplicitous inasmuch as each count involved a different victim present in the apartment building at the time of the fire (see People v VanGorden, 147 A.D.3d 1436, 1439 [4th Dept 2017], lv denied 29 N.Y.3d 1037 [2017]; People v Cunningham, 12 A.D.3d 1131, 1132 [4th Dept 2004], lv denied 4 N.Y.3d 829 [2005], reconsideration denied 5 N.Y.3d 761 [2005]; People v Kindlon, 217 A.D.2d 793, 795 [3d Dept 1995], lv denied 86 N.Y.2d 844 [1995]).
Defendant contends that the People improperly introduced, without obtaining an advance ruling and in violation of People v Molineux (168 NY 264 [1901]), testimony of four prosecution witnesses that defendant used an illegal drug on various occasions. Defendant further contends that the People improperly referred to that testimony during summation. Inasmuch as defense counsel did not object to the testimony of three of the witnesses or the prosecutor's reference during summation, defendant's contention with respect thereto is unpreserved (see People v Delacruz, 193 A.D.3d 1340, 1341-1342 [4th Dept 2021], lv denied 38 N.Y.3d 926 [2022]; People v Howard, 167 A.D.3d 1499, 1501 [4th Dept 2018], lv denied 32 N.Y.3d 1205 [2019]). Defendant's contention is also unpreserved with respect to the testimony of the fourth witness inasmuch as the court sustained defense counsel's objection to that testimony and struck it from the record and, "in the absence of further objection or a request for a mistrial, [the court's remedy] 'must be deemed to have corrected the error to the defendant's satisfaction'" (People v Acosta, 134 A.D.3d 1525, 1526 [4th Dept 2015], lv denied 27 N.Y.3d 990 [2016], quoting People v Heide, 84 N.Y.2d 943, 944 [1994]; see People v Contreras, 154 A.D.3d 1320, 1321-1322 [4th Dept 2017], lv denied 30 N.Y.3d 1104 [2018]). We decline to exercise our power to review defendant's contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]; Howard, 167 A.D.3d at 1501; Acosta, 134 A.D.3d at 1527). We reject defendant's related contention that she was denied effective assistance of counsel by defense counsel's failure to object to that evidence." '[I]t is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations' for [defense] counsel's alleged shortcomings" (People v Benevento, 91 N.Y.2d 708, 712 [1998], quoting People v Rivera, 71 N.Y.2d 705, 709 [1988]), and defendant failed to meet that burden here (see People v Francis, 206 A.D.3d 1605, 1606 [4th Dept 2022], lv denied 38 N.Y.3d 1133 [2022]; People v Conley, 192 A.D.3d 1616, 1620 [4th Dept 2021], lv denied 37 N.Y.3d 1026 [2021]).
Defendant additionally contends that the court erred in failing to instruct the jury that a prosecution witness-a participant in the crime who agreed to testify against defendant as part of a plea bargain-was an accomplice as a matter of law and that her testimony therefore required corroboration pursuant to CPL 60.22. Defendant failed to preserve her contention for our review because she did not request such an instruction or object to the jury charge as given (see People v Lipton, 54 N.Y.2d 340, 351 [1981]; People v Ortiz, 194 A.D.3d 1351, 1351 [4th Dept 2021], lv denied 37 N.Y.3d 994 [2021]). In any event, we conclude that "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" (People v Fortino, 61 A.D.3d 1410, 1411 [4th Dept 2009], lv denied 12 N.Y.3d 925 [2009]; see People v Reed, 115 A.D.3d 1334, 1336 [4th Dept 2014], lv denied 23 N.Y.3d 1024 [2014]; People v Peoples, 66 A.D.3d 1419, 1419 [4th Dept 2009], lv denied 14 N.Y.3d 843 [2010]). Consequently, we reject defendant's related contention that defense counsel was ineffective for failing to request such an instruction (see People v Clarke, 101 A.D.3d 1646, 1647 [4th Dept 2012], lv denied 20 N.Y.3d 1097 [2013]; see also People v Covington, 222 A.D.3d 1166, 1171 [3d Dept 2023], lv denied 41 N.Y.3d 964 [2024]; People v Barber, 133 A.D.3d 868, 870 [2d Dept 2015], lv denied 28 N.Y.3d 926 [2016]; People v Leffler, 13 A.D.3d 164, 165 [1st Dept 2004], lv denied 4 N.Y.3d 800 [2005]; see generally People v Caban, 5 N.Y.3d 143, 155-156 [2005]).
Viewing the evidence in the light most favorable to the People (see People v Contes, 60 N.Y.2d 620, 621 [1983]), we conclude that, contrary to defendant's further contention, the evidence is legally sufficient to establish that defendant intended to damage the apartment building by starting the fire (see People v Dillard, 189 A.D.3d 2137, 2137-2138 [4th Dept 2020], lv denied 36 N.Y.3d 1119 [2021]; People v Utsey, 182 A.D.2d 575, 575-576 [1st Dept 1992], lv denied 80 N.Y.2d 839 [1992]). Moreover, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 N.Y.3d 342, 349 [2007]), we conclude that, even if a different verdict would not have been unreasonable, it cannot be said that the jury failed to give the evidence the weight it should be accorded (see Dillard, 189 A.D.3d at 2138; see generally People v Bleakley, 69 N.Y.2d 490, 495 [1987]).
Contrary to defendant's contention, her sentence is not unduly harsh or severe. Finally, we have considered defendant's remaining contentions and conclude that none warrants modification or reversal of the judgment.