People v. Pace

305 A.D.2d 984, 758 N.Y.S.2d 568, 2003 N.Y. App. Div. LEXIS 4742

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 2, 2003
• Status: Published

Opinions

—Appeal from a judgment of Niagara County Court (Noonan, J.), entered April 17, 1998, convicting defendant after a jury trial of, inter alia, murder in the second degree (two counts).

It is hereby ordered that the judgment so appealed from be and the same hereby is affirmed.

Memorandum: Defendant appeals from a judgment convicting him following a jury trial of two counts each of murder in the second degree (Penal Law § 125.25 [2], [3]) and criminal use of a firearm in the first degree (§ 265.09 [1] [a], [b]), and four counts of robbery in the first degree (§ 160.15 [1] [4]). We reject defendant’s contention that the verdict is against the weight of the evidence. The People’s case against defendant was based primarily on the testimony of a jailhouse informant, and it cannot be said that his testimony was incredible as a matter of law (see People v Batista, 235 AD2d 631, 631-632 [1997], lv denied 89 NY2d 1088 [1997]; People v Black, 226 AD2d 1113 [1996], lv denied 88 NY2d 1019 [1996]). Contrary to defendant’s contention, the testimony of the informant was not rendered incredible as a matter of law because he received favorable treatment for his testimony (see People v Walts, 267 AD2d 617, 620 [1999], lv denied 95 NY2d 859 [2000]) or because he acknowledged his own prior criminal and amoral conduct (see Batista, 235 AD2d at 631-632; see also People v Hubert, 238 AD2d 745, 746 [1997], lv denied 90 NY2d 859 [1997]). Those subjects were addressed on both direct examination and cross-examination of the informant, and the jury had the opportunity to assess his testimony and credibility (see Batista, 235 AD2d at 631-632). Affording great deference to the jury’s determination of credibility (see generally People v Duffy, 299 AD2d 914 [2002]), we conclude that the jury did not fail to give the evidence the weight it should be accorded (see People v Bleakley, 69 NY2d 490, 495 [1987]).

We reject defendant’s further contention that County Court erred in refusing to instruct the jury that it must acquit defendant if it discredited the informant’s testimony. The court’s “charge as a whole adequately conveyed to the jury the appropriate standards” (People v Adams, 69 NY2d 805, 806 [1987]). The court also gave an appropriate charge on reasonable doubt (see generally 1 CJIENY] 6.20). Defendant’s contention that the informant’s testimony should have been precluded based on the attorney-client privilege is not preserved for our review (see CPL 470.05 [2]) and, in any event, lacks merit (see People v Beige, 59 AD2d 307, 309 [1977]). Finally, the sentence is neither unduly harsh nor severe.

All concur except Lawton, J., who dissents and votes to reverse in accordance with the following.