People v. Perez

• Decision Date: 10 November 2011
• Parties: The PEOPLE of the State of New York, Respondent,v.Edwin PEREZ, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

89 A.D.3d 1393
932 N.Y.S.2d 628
2011 N.Y. Slip Op. 07958

The PEOPLE of the State of New York, Respondent,
v.
Edwin PEREZ, Defendant–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

Nov. 10, 2011.

[932 N.Y.S.2d 629]

Easton Thompson Kasperek Shiffrin LLP, Rochester (Donald M. Thompson of Counsel), for Defendant–Appellant.Michael C. Green, District Attorney, Rochester (Leslie E. Swift of Counsel), for Respondent.PRESENT: SCUDDER, P.J., SMITH, CENTRA, GREEN, AND GORSKI, JJ.MEMORANDUM:

[89 A.D.3d 1393] Defendant appeals from a judgment convicting him upon a jury verdict of manslaughter in the first degree (Penal Law § 125.20 [1] ). Defendant failed to preserve for our review his challenge to the alleged legal insufficiency of the evidence because he failed to move for a trial order of dismissal on the specific ground now raised ( see People v. Carncross, 14 N.Y.3d 319, 324–325, 901 N.Y.S.2d 112, 927 N.E.2d 532; People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919). In any event, defendant's challenge lacks merit. Defendant was charged as an accessory in connection with the stabbing of two victims. One of the victims survived the assault but sustained serious injuries, and the other victim later died (hereafter, decedent). Defendant was acquitted of assault with respect to the surviving victim and was convicted as an accomplice with respect to decedent. The evidence at trial establishes, and defendant concedes, that he received a cut on his hand during the altercation. The evidence further establishes that the codefendant repeatedly stabbed decedent, and that defendant assisted [89 A.D.3d 1394] the codefendant by holding decedent while the codefendant attacked him. Inasmuch as there is no evidence that defendant took any part in the attack upon the surviving victim, the jury could therefore have concluded that defendant received the cut by holding decedent while the codefendant stabbed him. Consequently, the evidence is legally sufficient to establish defendant's guilt of manslaughter in the first degree ( see People v. Rutledge, 70 A.D.3d 1368, 894 N.Y.S.2d 668, lv. denied 15 N.Y.3d 777, 907 N.Y.S.2d 466, 933 N.E.2d 1059; People v. Borgos, 168 A.D.2d 628, 563 N.Y.S.2d 105, lv. denied 77 N.Y.2d 958, 570 N.Y.S.2d 492, 573 N.E.2d 580; see generally People v. Medina, 276 A.D.2d 367, 714 N.Y.S.2d 60, lv. denied 96 N.Y.2d 737, 722 N.Y.S.2d 803, 745 N.E.2d 1026). Furthermore, because there is no merit to defendant's challenge to the legal sufficiency of the evidence, there also is no merit to defendant's contention that defense counsel was ineffective in failing to raise that challenge ( see e.g. People v. Dozier, 32 A.D.3d 1346, 1347, 821 N.Y.S.2d 726, lv. dismissed 8 N.Y.3d 880, 832 N.Y.S.2d 492, 864 N.E.2d 622; People v. Lascelle, 23 A.D.3d 1137, 1139, 807 N.Y.S.2d 750, lv. denied 6 N.Y.3d 755, 810 N.Y.S.2d 423, 843 N.E.2d 1163). Viewing the evidence in light of the elements of the crime...