| People v Cole |
| 2009 NY Slip Op 09869 [68 AD3d 1763] |
| December 30, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Ahmir Cole,Appellant. |
—[*1] Ahmir Cole, defendant-appellant pro se. Frank A. Sedita, III, District Attorney, Buffalo (Raymond C. Herman of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.), renderedNovember 8, 2007. The judgment convicted defendant, upon two jury verdicts, of murder in thefirst degree (two counts), attempted robbery in the first degree, robbery in the first degree (fourcounts), criminal possession of a weapon in the second degree (three counts), attempted murderin the second degree, assault in the second degree, criminal possession of a controlled substancein the seventh degree, criminal possession of a weapon in the third degree, and assault in the firstdegree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon two verdicts,following two jury trials, of various crimes that include two counts of murder in the first degree(Penal Law § 125.27 [1] [a] [vii]; [b]), occurring at Tony's Ranch House, and one count ofattempted murder in the second degree (§§ 110.00, 125.25 [1]), occurring at theGroove Nightclub. He also was convicted of, inter alia, four counts of robbery in the first degree(§ 160.15 [1], [2]), three counts of criminal possession of a weapon in the second degree(§ 265.03 [former (2)]) and one count each of criminal possession of a weapon in the thirddegree (§ 265.02 [former (4)]), criminal possession of a controlled substance in theseventh degree (§ 220.03), and attempted robbery in the first degree (§§110.00, 160.15 [2]).
Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we reject defendant's contention that the verdict is against the weight ofthe evidence with respect to the two counts of murder at Tony's Ranch House and the count ofattempted murder at the Groove Nightclub, and with respect to the crimes relating to the incidentat the Kenmore Store (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Wefurther conclude that the evidence is legally sufficient to support the conviction with respect tothe Kenmore Store crimes (see generally id.). The admissions of defendant to hisgirlfriend concerning his involvement in the Kenmore Store crimes corroborated the testimonyof defendant's accomplice (see CPL 60.22 [1]; People v Pierce, 303 AD2d 966[2003], lv denied 100 NY2d 565 [2003]).
Contrary to the further contention of defendant, we conclude that County Court properly[*2]denied his motion seeking to sever the drug possession countfrom the count of criminal possession of a weapon in the third degree, inasmuch as the cocaineand gun possession were part of the same criminal transaction at the time of defendant's arrest onMay 29, 2006 (see CPL 200.20 [2] [a]). In addition, based on the evidence that the sameweapon was used in the incidents at Tony's Ranch House and the Groove Nightclub, weconclude that the "chain of joinder" was then properly extended to the robbery, murder andattempted murder counts arising out of those incidents (CPL 200.20 [2] [d]). With respect to theconviction of two counts of murder in the first degree, defendant failed to preserve for ourreview his contention that the conviction is not supported by legally sufficient evidenceinasmuch as the People did not offer proof of his age (see People v Kleinhans, 236 AD2d790, 791 [1997], lv denied 89 NY2d 1096 [1997]; see generally People v Gray,86 NY2d 10, 19 [1995]). Defendant failed to move for a trial order of dismissal with respect tothose counts that was " 'specifically directed' at the alleged error" (Gray, 86 NY2d at 19).
We have considered the remaining contentions in defendant's pro se supplemental brief, andwe conclude that they are either unpreserved or without merit. Present—Scudder, P.J.,Hurlbutt, Smith and Carni, JJ.