Opinion
February 27, 1996
Appeal from the Supreme Court, New York County (Bonnie Wittner, J.).
Defendant Jones' "motion" for a severance of the drug charges from those related to the attempted murder charges, raised for the first time on the day of trial, was untimely (CPL 255.20, [3]; People v. Matthews, 175 A.D.2d 24, 24-25, affd 79 N.Y.2d 1010). Moreover, it was based on a different ground from the ground raised on appeal. Defendant Green did not join in this motion at all. Therefore, defendants' contentions that the charges were not joinable under CPL 200.20 are unpreserved for appellate review ( People v. Russell, 71 N.Y.2d 1016, 1017), and we decline to review them in the interest of justice. If we were to review them, we would find that a severance was not warranted since the charges were joinable under CPL 200.20 (2)(b). In this drug related shooting, the drug charges were relevant to motive ( see, People v. Zorilla, 211 A.D.2d 582; People v. Munger, 24 N.Y.2d 445, 449). We also find that Green was not deprived of effective assistance of counsel by the fact that his counsel did not move to sever.
We agree with the hearing court that suppression of statement or identification evidence was not warranted since the 48-hour delay in arraigning defendants was not an attempt to deprive them of counsel ( People v. Hopkins, 58 N.Y.2d 1079, 1081), but rather resulted from the need to complete the investigation by conducting prompt line-ups since defendants were arrested over two months after the shooting.
After the victim failed to identify anyone from Jones' lineup, the officer immediately observed that Jones was slouching down and obscuring his face by holding his number card above his chin. He removed the witness from the viewing room and ordered all of the subjects to sit upright and hold their cards below their faces, whereupon, the victim identified Jones. Under the circumstances, the officer did not position the defendant in a manner so as "to create a substantial likelihood that the defendant would be singled out for identification" ( People v Chipp, 75 N.Y.2d 327, 336, cert denied 498 U.S. 833).
Upon an independent review of the facts, we find that the verdict was not against the weight of the evidence. We have considered defendants' remaining contentions and find them to be without merit.
Concur — Murphy, P.J., Ross, Tom and Mazzarelli, JJ.