Peoplev.Martins

Appellate Division of the Supreme Court of New York, Second DepartmentJun 16, 2003
306 A.D.2d 423 (N.Y. App. Div. 2003)
306 A.D.2d 423760 N.Y.S.2d 874

2000-07443

Argued May 16, 2003.

June 16, 2003.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Spires, J.), rendered July 28, 2000, convicting him of assault in the first degree, assault in the third degree, and aggravated harassment in the second degree (two counts), upon a jury verdict, and imposing sentence.

David R. Kliegman, Kew Gardens, N.Y., for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and Merri Turk Lasky of counsel), for respondent.

Before: MYRIAM J. ALTMAN, J.P., ANITA R. FLORIO, THOMAS A. ADAMS, REINALDO E. RIVERA, JJ.


DECISION ORDER

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the Supreme Court properly denied his motions to sever his trial from that of the codefendants. It is well settled that severance motions are addressed to the sound discretion of the court (see People v. Mahboubian, 74 N.Y.2d 174, 183; People v. Clark, 233 A.D.2d 460). Severance is compelled only where the core of each defense is in irreconcilable conflict with the other and where there is a significant danger that the conflict alone would lead the jury to infer a defendant's guilt (see People v. Cardwell, 78 N.Y.2d 996, 997-998; People v. Mahboubian, supra at 183-184). Moreover, where, as here, "proof against the defendants is supplied by the same evidence, only the most cogent reasons warrant a severance" (People v. Bornholdt, 33 N.Y.2d 75, 87, cert denied sub nom. Victory v. New York, 416 U.S. 905). In this case, the defenses asserted by each defendant were not in irreconcilable conflict with each other so as to compel severance.

Upon the exercise of our factual review power, we are satisfied that the verdict of guilt with respect to the conviction of assault in the third degree was not against the weight of the evidence (see CPL 470.15).

The sentence imposed was not excessive (see People v. White, 192 A.D.2d 736, 737; People v. Suitte, 90 A.D.2d 80).

ALTMAN, J.P., FLORIO, ADAMS and RIVERA, JJ., concur.