Opinion
December 30, 1999
Appeal from Judgment of Supreme Court, Erie County, Wolfgang, J. — Murder, 2nd Degree.
Judgment unanimously affirmed.
PRESENT: LAWTON, J. P., HAYES, WISNER, HURLBUTT AND BALIO, JJ.
Memorandum:
Defendant appeals from a judgment convicting him following a jury trial of two counts of murder in the second degree (Penal Law § 125.25) and one count of robbery in the first degree (Penal Law § 160.15). We reject the contention of defendant that Supreme Court erred in denying his motion for recusal. The record does not establish any bias or prejudice on the part of the court ( see, People v. Brunner, 182 A.D.2d 1123, lv denied 80 N.Y.2d 828). Contrary to the contention of defendant, his previous burglary conviction did not preclude on statutory double jeopardy grounds the subsequent prosecution for felony murder based on burglary. "The offenses as defined have substantially different elements and the acts establishing one offense are in the main clearly distinguishable from those establishing the other" (CPL 40.20[a]). Nor was the subsequent prosecution precluded on constitutional double jeopardy grounds ( see, People ex rel. Di Lapo v. Tutuska, 27 Misc.2d 544, affd 11 A.D.2d 906, affd on opn at Special Term 9 N.Y.2d 910, mot to clarify granted 10 N.Y.2d 828; People v. Murray, 92 A.D.2d 617, citing People v. Berzups, 49 N.Y.2d 417, 427).
By consenting to the use of the Grand Jury minutes at trial, defendant waived his present contention that the court erred in admitting in evidence portions of his Grand Jury testimony. He failed to preserve for our review his contention that the prosecutor's comments to the jury concerning that testimony were improper. In any event, the prosecutor's comments did not exceed the bounds of legitimate advocacy ( cf., People v. Bonilla, 170 A.D.2d 945, lv denied 77 N.Y.2d 904) nor could they "`reasonably be interpreted by the jury as adverse comment on defendant's failure to take the stand'" ( People v. Tascarella, 227 A.D.2d 888, lv denied 89 N.Y.2d 867). The verdict is supported by legally sufficient evidence and is not against the weight of the evidence ( see, People v. Bleakley, 69 N.Y.2d 490, 495). Finally, the sentence is neither unduly harsh nor severe.