| People v Kirksey |
| 2013 NY Slip Op 04358 [107 AD3d 825] |
| June 12, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Alphonso Kirksey, Appellant. |
—[*1] Francis D. Phillips II, District Attorney, Middletown, N.Y. (Elizabeth L. Guinup andAndrew R. Kass of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County(DeRosa, J.), rendered October 7, 2009, convicting him of attempted murder in the firstdegree, attempted murder in the second degree, assault in the first degree, attemptedaggravated assault on a police officer, criminal possession of a weapon in the seconddegree, and criminal possession of a weapon in the third degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is affirmed.
The Supreme Court properly denied the defendant's motion to sever certain counts inthe indictment, since the nature of the proof for each of the offenses was material andadmissible as evidence upon the trial of the other counts in the indictment (seeCPL 200.20 [2] [b]). Inasmuch as the offenses were properly joined in one indictmentfrom the outset, the court lacked the statutory authority to sever them (see CPL200.20 [3]; People v Bongarzone, 69 NY2d 892, 895 [1987]; People v Dayton, 66 AD3d797 [2009]; People vSalnave, 41 AD3d 872, 873 [2007]).
The defendant's contention that the evidence was legally insufficient to establish hisguilt is unpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d484, 492 [2008]). In any event, viewing the evidence in the light most favorable tothe prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that itwas legally sufficient to establish the defendant's guilt beyond a reasonable doubt.Moreover, upon our independent review pursuant to CPL 470.15 (5), we are satisfiedthat the verdict was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
The defendant's contention that the Supreme Court erred in allowing the introductionof evidence of prior uncharged crimes or bad acts (see generally People vMolineux, 168 NY 264 [1901]) is unpreserved for appellate review (see CPL470.05 [2]). In any event, any error was harmless, as there was overwhelming evidenceof the defendant's guilt, and no significant probability that the error affected the verdict(see People v Crimmins, 36 NY2d 230, 241-242 [1975]; People v Louis, 99 AD3d725, 726 [2012]).[*2]
The defendant was not deprived of the effectiveassistance of counsel (see People v Benevento, 91 NY2d 708 [1998]; Peoplev Baldi, 54 NY2d 137 [1981]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's remaining contentions, including those raised in his pro sesupplemental brief, are without merit. Balkin, J.P., Hall, Lott and Miller, JJ., concur.