         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1286
KA 08-02655
PRESENT: SCUDDER, P.J., CENTRA, VALENTINO, WHALEN, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DAMION W. CLARKE, DEFENDANT-APPELLANT.


PETER J. PULLANO, ROCHESTER, FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Elma A.
Bellini, J.), rendered September 5, 2008. The judgment convicted
defendant, upon a jury verdict, of manslaughter in the first 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 manslaughter in the first degree (Penal Law
§ 125.20 [1]). Contrary to defendant’s contention, he was not denied
effective assistance of counsel based on defense counsel’s failure to
request that the jury be charged with the issue whether a prosecution
witness was an accomplice (see generally People v Baldi, 54 NY2d 137,
147). Even assuming, arguendo, that an accomplice charge was
warranted (see generally People v Caban, 5 NY3d 143, 152-153), we
conclude that “there was substantial corroboration for the accomplice
testimony, and defendant would have derived no benefit from an
accomplice charge” (People v Leffler, 13 AD3d 164, 165, lv denied 4
NY3d 800). Because “ ‘the failure of [County Court] to give [an
accomplice charge] is of no moment [where, as here,] the testimony of
the witness was in fact amply corroborated’ ” (People v Peoples, 66
AD3d 1419, 1419, lv denied 14 NY3d 843; see People v Freeman, 78 AD3d
1505, 1506, lv denied 15 NY3d 952), defense counsel was not
ineffective for failing to request such a charge (see Leffler, 13 AD3d
at 165).

     Viewing the evidence in light of the elements of the crime of
manslaughter in the first degree 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). “Although a different result would not have been
unreasonable, the jury was in the best position to assess the
credibility of the witnesses and, on this record, it cannot be said
                                 -2-                          1286
                                                         KA 08-02655

that the jury failed to give the evidence the weight it should be
accorded” (People v Orta, 12 AD3d 1147, 1147, lv denied 4 NY3d 801).
Finally, the sentence is not unduly harsh or severe.




Entered:   December 21, 2012                   Frances E. Cafarell
                                               Clerk of the Court
