        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

511
KA 10-01206
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

EDUARDO TRINIDAD, DEFENDANT-APPELLANT.


LINDA M. CAMPBELL, SYRACUSE, FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (William D.
Walsh, J.), rendered May 4, 2010. The judgment convicted defendant,
upon a jury verdict, of murder in the second degree, attempted robbery
in the first degree, and criminal possession of a weapon in the second
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 murder in the second degree (Penal Law § 125.25
[3] [felony murder]), attempted robbery in the first degree (§§
110.00, 160.15 [2]), and criminal possession of a weapon in the second
degree (§ 265.03 [3]). Defendant’s contention that County Court
abused its discretion in admitting in evidence photographs of the
victim’s fatal injuries is unpreserved for our review because he made
only a general objection to the admission of the photographs at trial
(see People v Dickerson, 42 AD3d 228, 236-237, lv denied 9 NY3d 960;
see generally People v Shire, 77 AD3d 1358, 1359, lv denied 15 NY3d
955). In any event, the court did not abuse its discretion in
admitting the photographs in evidence (see People v Williams, 28 AD3d
1059, 1060, affd 8 NY3d 854; People v Hayes, 71 AD3d 1477, 1477-1478,
lv denied 15 NY3d 751). “Photographic evidence should be excluded
only if its sole purpose is to arouse the emotions of the jury and to
prejudice the defendant” (People v Pobliner, 32 NY2d 356, 370, rearg
denied 33 NY2d 657, cert denied 416 US 905), and that is not the case
here. The photographs were properly admitted for a number of
purposes, including to assist the jury in understanding the Medical
Examiner’s testimony concerning the victim’s gunshot wound (see Hayes,
71 AD3d at 1477-1478).

     Defendant failed to preserve for our review his further
contention that, in sentencing him, the court penalized him for
                                 -2-                           511
                                                         KA 10-01206

exercising the right to a jury trial, inasmuch as defendant failed to
raise that contention at sentencing (see People v Stubinger, 87 AD3d
1316, 1317, lv denied 18 NY3d 862). In any event, that contention
lacks merit because “there is no indication in the record before us
that the sentencing court acted in a vindictive manner based on
defendant’s exercise of the right to a trial” (id. [internal quotation
marks omitted]; cf. People v Barone, 101 AD3d 585, 587; People v Cox,
122 AD2d 487, 489; People v Slobodan, 67 AD2d 630, 630). We do not
find defendant’s sentence to be otherwise harsh or severe, and we
decline to reduce it on that ground (see CPL 470.15 [6] [b]).

     Additionally, viewing the evidence in the light most favorable to
the prosecution (see People v Danielson, 9 NY3d 342, 349), we conclude
that it is legally sufficient to establish beyond a reasonable doubt
that the defendant acted in concert with and intentionally aided his
companions in committing the crime of attempted robbery in the first
degree (see People v Roberts, 64 AD3d 796, 797; People v Mathis, 60
AD3d 697, 698, lv denied 12 NY3d 856; People v Witherspoon, 300 AD2d
605, 605, lv denied 99 NY2d 634), and to support the conviction of
felony murder “based on the commission of that predicate crime”
(Roberts, 64 AD3d at 797). “Accessorial liability requires only that
defendant, acting with the mental culpability required for the
commission of the crime, intentionally aid another in the conduct
constituting the offense” (People v Molson, 89 AD3d 1539, 1539, lv
denied 18 NY3d 960 [internal quotation marks omitted]; see Penal Law §
20.00). Here, we conclude that there was evidence from which the jury
could have reasonably inferred that defendant and his accomplices
shared “a common purpose and a collective objective” (People v Cabey,
85 NY2d 417, 422). Viewing the evidence in light of the elements of
the crimes of murder in the second degree and attempted robbery in the
first degree as charged to the jury (see Danielson, 9 NY3d at 349), we
further conclude that the verdict with respect to those crimes is not
against the weight of the evidence (see generally People v Bleakley,
69 NY2d 490, 495).




Entered:   June 7, 2013                        Frances E. Cafarell
                                               Clerk of the Court
