| People v Clark |
| 2009 NY Slip Op 07068 [66 AD3d 1489] |
| October 2, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Prince R.Clark, Jr., Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.), renderedFebruary 22, 2006. The judgment convicted defendant, upon a jury verdict, of criminalpossession of a controlled substance in the third degree (two counts), criminal possession of aweapon in the second degree, criminal possession of a weapon in the third degree (two counts)and criminally using drug paraphernalia in the second degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury trial of, interalia, two counts each of criminal possession of a controlled substance in the third degree (PenalLaw § 220.16 [1], [12]) and criminally using drug paraphernalia in the second degree(§ 220.50 [2], [3]). We reject the contention of defendant that County Court abused itsdiscretion in denying his motion to sever his trial from that of his codefendant. "The 'core ofeach defense [was not] in irreconcilable conflict with the other and . . . there [wasno] significant danger, as both defenses [were] portrayed to the trial court, that the conflict alonewould lead the jury to infer defendant's guilt' " (People v Bolling, 49 AD3d 1330, 1332 [2008], quoting Peoplev Mahboubian, 74 NY2d 174, 184 [1989]; see People v Cardwell, 78 NY2d 996,997-998 [1991]). Although at least one comment made by the codefendant's attorney onsummation was unfavorable to defendant, that single display of hostility did not warrantseverance (see People v Watkins,10 AD3d 665, 665-666 [2004], lv denied 3 NY3d 761 [2004]). Also contrary to thecontention of defendant, he did not establish his entitlement to severance on the ground that hewould have been subjected to prejudicial cross-examination by the attorney for his codefendanthad defendant testified (see generally People v McGee, 68 NY2d 328, 333 [1986]). "Atno stage of the proceedings [did] defendant establish[ ] that his potential testimony would havegiven the codefendant an incentive to impeach his credibility" (People v Frazier, 309AD2d 534, 534 [2003], lv denied 1 NY3d 571 [2003]). Present—Smith, J.P.,Fahey, Carni, Pine and Gorski, JJ.