People v. Waldriff , 847 N.Y.S.2d 795 ( 2007 )

Appeal from a judgment of the Niagara County Court (Peter L. Broderick, Sr., J.), rendered October 26, 2006. The judgment convicted defendant, upon a jury verdict, of insurance fraud in the fourth degree and attempted grand larceny in the fourth degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed and the matter is remitted to Niagara County Court for proceedings pursuant to CPL 460.50 (5).

Memorandum: On appeal from a judgment convicting him upon a jury verdict of insurance fraud in the fourth degree (Penal Law § 176.15) and attempted grand larceny in the fourth degree (§§ 110.00, 155.30 [1]), defendant contends that County Court erred in charging the jury that, “if [it finds] the defendant not guilty on one charge, it would be inconsistent to find him guilty on the other charge. However, [it] could find him guilty on both charges.” According to defendant, the court thereby “essentially tethered” the two charges. We reject that contention. Viewing the jury charge “as a whole against the background of the evidence produced at the trial” (People v Andujas, 79 NY2d 113, 118 [1992]; see People v McDaniels, 19 AD3d 1071 [2005], lv denied 5 NY3d 830 [2005]), we conclude that the charge was proper (see People v Coleman, 70 NY2d 817, 819 [1987]; People v Jones, 8 AD3d 1024 [2004], lv denied 3 NY3d 676 [2004]; cf. People v Murphy, 188 AD2d 1061 [1992]). Defendant failed to preserve for our review his contention that the People failed to present evidence to corroborate the testimony of the accomplice (see People v Gray, 86 NY2d 10, 19 [1995]; People v Padro, 75 NY2d 820 [1990], rearg denied 75 NY2d 1005 [1990], rearg dismissed 81 NY2d 989 [1993]) and, in any event, that contention is without merit (see People v Giguere, 261 AD2d 941 [1999], lv denied 93 NY2d 1018 [1999]). Finally, the evidence is legally sufficient to support the conviction, and the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Present— Hurlbutt, J.P., Martoche, Fahey, Peradotto and Green, JJ.