SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

103 

KA 07-00779 

PRESENT: CENTRA, J.P., CARNI, LINDLEY, GREEN, AND GORSKI, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

BENJAMIN RIVERA, DEFENDANT-APPELLANT.

(APPEAL NO. 1.) 

MULDOON & GETZ, ROCHESTER (GARY MULDOON OF COUNSEL), FOR

DEFENDANT-APPELLANT. 

BENJAMIN RIVERA, DEFENDANT-APPELLANT PRO SE. 

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (LESLIE E. SWIFT OF

COUNSEL), FOR RESPONDENT. 

 

Appeal, by permission of a Justice of the Appellate Division of

the Supreme Court in the Fourth Judicial Department, from an order of

the Monroe County Court (Alex R. Renzi, J.), entered March 14, 2007. 

The order denied defendant’s motions pursuant to CPL 440.10 to vacate

the judgment convicting defendant of murder in the second degree. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed. 

Memorandum: In appeal No. 1, defendant appeals from an order of

County Court (Renzi, J.) denying his CPL 440.10 motions to vacate the

judgment of County Court (Wisner, J. [hereafter, trial court]) in

appeal No. 2, convicting him upon a jury verdict of murder in the

second degree (Penal Law § 125.25 [3]). We note at the outset that,

following our prior affirmance of that judgment convicting defendant

of murder (People v Rivera, 170 AD2d 962, lv denied 77 NY2d 999),

defendant moved for a writ of error coram nobis. He contended that he

was denied effective assistance of appellate counsel because defense

counsel failed to raise an issue on direct appeal that would have

resulted in reversal, i.e., that the trial court’s jury instruction

distorted the “course and furtherance” element of felony murder. We

concluded that the issue may have merit and granted the motion (People

v Rivera, 52 AD3d 1290), and we thus now consider de novo defendant’s

appeal from the judgment in appeal No. 2.

Addressing first appeal No. 2, we affirm the judgment. Defendant

contends that, in its jury instructions, the trial court misstated an

element of felony murder such that reversal is required. The felony

murder statute provides in relevant part that “[a] person is guilty of
-2- 103 

KA 07-00779 

murder in the second degree when . . .[, a]cting either alone or with

one or more other persons, he commits or attempts to commit [an

enumerated felony], and, in the course of and in furtherance of such

crime or of immediate flight therefrom, he, or another participant, if

there be any, causes the death of a person other than one of the

participants” (Penal Law § 125.25 [3] [emphasis added]). In its main

charge and its supplemental instructions, the trial court erroneously

used the phrase “in the course of or in furtherance of such crime,”

thereby replacing the term “and” with “or.” Defendant, however,

failed to preserve that contention for our review because he never

objected to the error (see People v Griffin, 48 AD3d 1233, 1236, lv

denied 10 NY3d 840). Defendant further contends that the trial court

violated CPL 310.30 by responding to a question from a juror without

first consulting with counsel. Because defense counsel was aware of

both the inquiry from the juror and the trial court’s response

thereto, she was required to object to the trial court’s procedure in

responding to the question in order to preserve defendant’s contention

for our review, and she failed to do so (see People v Ramirez, 15 NY3d

824, 825-826; People v Peller, 8 AD3d 1123, 1123-1124, lv denied 3

NY3d 679). We decline to exercise our power to review those

contentions as a matter of discretion in the interest of justice (see

CPL 470.15 [6] [a]). Viewing the evidence in light of the elements of

the crime as charged to the jury (see People v Danielson, 9 NY3d 342,

349), we reject defendant’s contention that the verdict is against the

weight of the evidence (see generally People v Bleakley, 69 NY2d 490,

495).

Addressing next appeal No. 1, we conclude that County Court

properly denied defendant’s motions seeking to vacate the judgment of

conviction in appeal No. 2. Contrary to defendant’s contention, he

did not receive ineffective assistance of counsel based on defense

counsel’s failure to call an accomplice as a witness to testify at

trial. Defense counsel’s alternative decision to request a missing

witness instruction with respect to that witness was a legitimate

trial strategy (see People v McCrone, 12 AD3d 848, 850, lv denied 4

NY3d 800; see generally People v Benevento, 91 NY2d 708, 712-713), and

the trial court in fact granted that request. Also contrary to

defendant’s contention, there was no Brady violation based on the

People’s alleged failure to provide him with that accomplice’s plea

colloquy. “The People are not required to turn over evidence where,

as here, defendant ‘knew of, or should reasonably have known of, the

evidence and its exculpatory nature’ ” (People v Singleton, 1 AD3d

1020, 1021, lv denied 1 NY3d 580). Finally, County Court properly

denied the motions to the extent that they sought to vacate the

judgment on the ground of newly discovered evidence, i.e., a written

statement by another accomplice. The motions, which were made almost

three years after the written statement was issued, were not made with

the requisite due diligence after the discovery of that evidence (see

People v Kandekore, 300 AD2d 318, 319, lv denied 99 NY2d 616, cert

denied 540 US 896). We note in any event that the statement, which

contradicted the accomplice’s prior statement to the police, was

inherently unreliable recantation testimony and thus was insufficient

by itself to warrant vacatur of the judgment (see People v
-3- 103 

KA 07-00779 

Thibodeau, 267 AD2d 952, 953, lv denied 95 NY2d 805; People v

Jackson, 238 AD2d 877, 878-879, lv denied 90 NY2d 859).

Entered: March 25, 2011 Patricia L. Morgan

Clerk of the Court