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

680
KA 09-02092
PRESENT: CENTRA, J.P., LINDLEY, SCONIERS, VALENTINO, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

SHANNON J. CAMPBELL, ALSO KNOWN AS JOHN DOE,
DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANE I. YOON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ERIN TUBBS OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Daniel J. Doyle, J.), rendered August 20, 2009. The judgment
convicted defendant, upon a jury verdict, of rape in the first degree
(two counts), criminal sexual act in the first degree (two counts) and
assault in the second degree.

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

     Memorandum: Defendant appeals from a judgment that convicted him
upon a jury verdict of, inter alia, two counts of rape in the first
degree (Penal Law § 130.35 [1]). Viewing the evidence in light of the
elements of the crimes as charged to the jury (see People v Danielson,
9 NY3d 342, 349), we conclude that the verdict is not against the
weight of the evidence (see generally People v Bleakley, 69 NY2d 490,
495). While the record establishes that the victim was able to
provide only a general description of her attackers and her DNA was
not detected on the exterior of the condom matching defendant’s DNA,
the jury was entitled to infer from the circumstances that the condom
matching defendant’s DNA was left at the scene when the crime was
committed (see generally People v Gibson, 74 AD3d 1700, 1703, affd 17
NY3d 757; People v Dearmus, 48 AD3d 1226, 1228, lv denied 10 NY3d 839;
People v Rush, 242 AD2d 108, 110, lv denied 92 NY2d 860,
reconsideration denied 92 NY2d 905).

     We further reject defendant’s contention that he was unduly
prejudiced by a joint trial. Specifically, defendant contends that
his “defense was constrained by his codefendant’s decision to assert
an alibi defense” because the “jury might [have] assume[d] that his
defense . . . rises or falls with the co[]defendant’s alibi claim,”
and that defendant was “inhibited from [testifying], since his
                                 -2-                           680
                                                         KA 09-02092

codefendant would not be bound by any Sandoval ruling.” In People v
Cardwell (78 NY2d 996), the Court of Appeals reiterated its “two-part
test for determining whether severance is required, stating that
‘severance is compelled where the core of each defense is in
irreconcilable conflict with the other and where there is a
significant danger, as both defenses are portrayed to the trial court,
that the conflict alone would lead the jury to infer defendant’s
guilt’ ” (id. at 997-998).

     Here, the defenses of defendant and his codefendant did not pose
an “irreconcilable conflict” (id. at 998). Specifically, the
codefendant claimed that he did not know defendant, and he and
defendant each denied having had sexual contact with anyone near the
subject scene at any time, including with the victim on the night in
question. Similarly, neither of the codefendant’s alibi witnesses
implicated defendant in any way. Defendant thus failed to demonstrate
that the core of his codefendant’s alibi defense was in irreconcilable
conflict with his own defense, and that there was a significant danger
that the conflict would lead the jury to infer his guilt (see People v
Watkins, 10 AD3d 665, 665-666, lv denied 3 NY3d 761; see also People v
Ortiz, 262 AD2d 988, 988, lv denied 94 NY2d 827).

     Contrary to defendant’s further contention, “he did not establish
his entitlement to severance on the ground that he would have been
subjected to prejudicial cross-examination by the attorney for his
codefendant had defendant testified” (People v Clark, 66 AD3d 1489,
1489, lv denied 13 NY3d 906). “ ‘At no stage of the proceedings [did]
defendant establish[ ] that his potential testimony would have given
the codefendant an incentive to impeach his credibility’ ” (id.).

     Finally, defendant’s sentence is not unduly harsh or severe.
Defendant failed to preserve for our review his further contention
that, in sentencing defendant, Supreme Court penalized him for
exercising his right to a jury trial (see People v Stubinger, 87 AD3d
1316, 1317, lv denied 18 NY3d 862). In any event, “ ‘[t]he mere fact
that a sentence imposed after trial is greater than that offered in
connection with plea negotiations is not proof that defendant was
punished for asserting his right to trial’ ” (id.). Indeed, there is
no indication in the record that “the court was motivated by
‘retaliation or vindictiveness’ in sentencing defendant following the
trial” (People v Flinn, 98 AD3d 1262, 1264, affd 22 NY3d 599, rearg
denied 23 NY3d 940).




Entered:   June 20, 2014                        Frances E. Cafarell
                                                Clerk of the Court
