| People v Terry |
| 2010 NY Slip Op 08975 [78 AD3d 1207] |
| November 30, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v DonTerry, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, JohnnetteTraill, and Emil Bricker of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.),rendered July 1, 2008, convicting him of robbery in the second degree (two counts) and criminalpossession of stolen property in the fifth degree, upon a jury verdict, and sentencing him toconcurrent terms of imprisonment of 25 years to life for each count of robbery in the seconddegree, and a determinate term of one year for criminal possession of stolen property in the fifthdegree.
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, byreducing the sentences of imprisonment for robbery in the second degree from terms ofimprisonment of 25 years to life to 20 years to life; as so modified, the judgment is affirmed.
When charges against codefendants are properly joined in a single indictment, motions forseparate trials are addressed to the discretion of the trial court (see People v Mahboubian,74 NY2d 174, 183 [1989]). When such a motion is made, "severance is compelled where thecore of each defense is in irreconcilable conflict with the other and where there is a significantdanger, as both defenses are portrayed to the trial court, that the conflict alone would lead thejury to infer defendant's guilt" (id. at 184; see People v Cardwell, 78 NY2d 996,997-998 [1991]). Here, the trial court did not err in denying the defendant's motions to sever histrial from that of the codefendant inasmuch as the defenses asserted by the defendant and thecodefendant were not in irreconcilable conflict with each other such that there was a danger that the conflict alone would have led the jury toinfer the defendant's guilt (see People v Turnbull, 52 AD3d 747 [2008]; see People vMartins, 306 AD2d 423 [2003]).
The defendant's claims relating to the identification at trial of an accomplice not on trial, thetrial court's instructions on reasonable doubt, and the trial court's instructions regarding the needfor separate verdicts as to each defendant are unpreserved for appellate review (see CPL470.05 [2]), and, in any event, do not warrant reversal (see CPL 470.15 [6] [a];People v Monroe, 40 NY2d 1096, 1098 [1977]; People v Johnson, 35 AD3d 885[2006]; People v Sanchez, 29 AD3d 608 [2006]; People v McAloney, 2 AD3d538, 539 [2003]; People v Grant, 294 AD2d 597 [2002]; People v Blackshear,112 AD2d 1044, 1045-1046 [1985]).[*2]
The defendant failed to preserve his claim that thestatutory procedure underlying his adjudication and sentencing as a persistent violent felonyoffender was unconstitutional (see CPL 470.05 [2]; Apprendi v New Jersey, 530US 466 [2000]; People v Alvarez, 76 AD3d 1098 [2010]), and, in any event, the claim iswithout merit (see People v Leon, 10 NY3d 122, 126 [2008], cert denied 128 SCt 2976 [2008]; People v Alvarez, 76 AD3d at 1099).
The sentence imposed was excessive to the extent indicated herein.
The defendant's remaining contentions, including those raised in his supplemental pro sebrief, are without merit. Fisher, J.P., Angiolillo, Belen and Austin, JJ., concur.