People v. Peoples , 885 N.Y.S.2d 819 ( 2009 )

Appeal from a judgment of the Erie County Court (Shirley Troutman, J.), rendered January 14, 2008. The judgment convicted defendant, upon a jury verdict, of murder in the second degree and criminal possession of a weapon in the second degree.

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

Memorandum: Defendant appeals from a judgment convicting him after a jury trial of, inter alia, murder in the second degree (Penal Law § 125.25 [1]). Defendant failed to preserve for our review his contention that County Court erred in failing to instruct the jury that a witness was an accomplice as a matter of law, thus requiring corroboration of the testimony of that witness (see People v Fortino, 61 AD3d 1410, 1411 [2009]; People v Montanez, 57 AD3d 1366, 1367 [2008], lv denied 12 NY3d 857 [2009]; People v Taylor, 57 AD3d 1518 [2008], lv denied 12 NY3d 822 [2009]). “In any event, the failure of the court to give that instruction is of no moment, inasmuch as the testimony of the witness was in fact amply corroborated” (Fortino, 61 AD3d at 1411; see People v Smith-Merced, 50 AD3d 259 [2008], lv denied 10 NY3d 939 [2008]; People v White, 81 AD2d 486, 488-489 [1981]). Defendant also failed to preserve for our review his contention that he was deprived of a fair trial by prosecutorial misconduct on summation (see CPL 470.05 [2]; People v Romero, 7 NY3d 911 [2006]; People v Smith, 32 AD3d 1291, 1292 [2006], lv denied 8 NY3d 849 [2007]), and that contention is without merit in any event. Contrary to defendant’s final contention, the sentence is not unduly harsh or severe. Present—Scudder, PJ., Hurlbutt, Martoche, Smith and Centra, JJ.