Opinion
KA 02-02118.
December 30, 2004.
Appeal from a judgment of the Erie County Court (Sheila A. DiTullio, J.), rendered September 4, 2002. The judgment convicted defendant, upon a jury verdict, of murder in the second degree, criminal possession of a weapon in the third degree (two counts) and burglary in the third degree.
Before: Pigott, Jr., P.J., Pine, Kehoe, Gorski and Martoche, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25), criminal possession of a weapon in the third degree (two counts) (§ 265.02 [1]) and burglary in the third degree (§ 140.20). Contrary to defendant's contention, it was not error to admit evidence of defendant's attempted escape from jail while awaiting trial as proof of defendant's consciousness of guilt ( see People v. Luongo, 47 NY2d 418, 429-430; see also People v. Rivenburgh, 1 AD3d 696, 700, lv denied 1 NY3d 579), especially where, as here, evidence of the escape plan was inextricably intertwined with the jailhouse informant's testimony regarding defendant's admissions of guilt because it explained why the informant did not come forward earlier ( see People v. Tarver, 2 AD3d 968, 969). We also reject defendant's contention that the verdict is against the weight of the evidence ( see People v. Bleakley, 69 NY2d 490, 495), especially in light of defendant's admissions to the jailhouse informant and defendant's presence in the vicinity of the victim before the murder. Moreover, the sentence imposed is not unduly harsh or severe.