| People v Sutton |
| 2010 NY Slip Op 02199 [71 AD3d 1396] |
| March 19, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v DominickSutton, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Shawn P. Hennessy of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Timothy J. Drury, J.), renderedDecember 27, 2006. The judgment convicted defendant, upon a jury verdict, of murder in thefirst degree (three counts), murder in the second degree (two counts), attempted murder in thesecond degree (two counts) and criminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial of, interalia, three counts of murder in the first degree (Penal Law § 125.27 [1] [a] [viii]; [b]), andtwo counts each of murder in the second degree (§ 125.25 [1]) and attempted murder inthe second degree (§§ 110.00, 125.25 [1]), defendant contends that County Courterred in refusing to sever his trial from that of his codefendant. We reject that contention.
We note at the outset that, although the court originally granted defendant's severancemotion, the court thereafter granted the motion of the People for leave to reargue their oppositionto defendant's motion and, upon reargument, denied the severance motion. Defendant contendsfor the first time on appeal that the People improperly introduced new evidence in support oftheir motion for leave to reargue and thus that the motion was actually one for leave to renew,pursuant to which the People were required to establish a reasonable justification for their failureto include the new facts in their previous opposition to the severance motion. We thus concludethat defendant's contention is not preserved for our review (see CPL 470.05 [2]).Defendant also failed to preserve for our review his contention that the People improperly reliedon hearsay in support of their motion for leave to reargue (see id.). We decline toexercise our power to review those contentions as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]).
With respect to the merits, we conclude that the court neither abused nor improvidentlyexercised its discretion in denying the motion for severance (see generally CPL 200.40[1]; People v Rimmen, 17 AD3d1078, 1079 [2005], lv denied 5 NY3d 768 [2005]). As we stated in our decisionaffirming the judgment convicting the codefendant of the same crimes (People v Thompson, 59 AD3d1115, 1115 [2009], lv denied 12 NY3d 860 [2009]), the court properly concludedthat "the core of each defense was not in irreconcilable conflict with the other" (see People vMahboubian, 74 NY2d 174, 183-184 [1989]; cf. People v Kyser, 26 AD3d 839, 840 [2006]), and we likewiseconclude that there [*2]was no violation of defendant's rightsunder Bruton v United States (391 US 123 [1968]) or Crawford v Washington(541 US 36 [2004]). Contrary to defendant's contention, the codefendant's inculpatory statementsimplicated defendant only "when linked with other evidence introduced at trial" and thusseverance was not required (People vDickson, 21 AD3d 646, 647 [2005]; see People v Bowen, 309 AD2d 600, 601[2003], lv denied 1 NY3d 568 [2003]; see generally Richardson v Marsh, 481US 200, 207-208 [1987]).
Even assuming, arguendo, that defendant preserved for our review his further contention thathe was denied his constitutional right to a speedy trial based on the court's denial of hisseverance motion, we conclude that defendant's contention lacks merit (see generally People v Romeo, 12NY3d 51, 55 [2009], cert denied 558 US —, 130 S Ct 63 [2009]; People vTaranovich, 37 NY2d 442, 444-445 [1975]).
Contrary to the contention of defendant, the conviction is supported by legally sufficientevidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). In addition,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 conclude that the verdict is not against the weight of the evidence(see generally Bleakley, 69 NY2d at 495). Contrary to the further contention ofdefendant, a new trial is not warranted based on juror misconduct. When defense counsel allegedthat two jurors were improperly deliberating before the court issued its final instructions, thecourt then interviewed those jurors (see People v Castillo, 144 AD2d 376, 377-378[1988], lv denied 73 NY2d 890 [1989]). We see no basis to disturb the court'sdetermination to credit the jurors' statements denying any improper conduct (see generallyPeople v Cabrera, 305 AD2d 263 [2003], lv denied 100 NY2d 560 [2003]). Finally,the sentence is not unduly harsh or severe. Present—Smith, J.P., Centra, Fahey, Green andPine, JJ.