| People v Anderson |
| 2014 NY Slip Op 00026 [113 AD3d 1102] |
| January 3, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Keon S. Anderson, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.),rendered July 1, 2008. The judgment convicted defendant, upon a jury verdict, of murderin the second degree and robbery in the first 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 juryverdict of murder in the second degree (Penal Law § 125.25 [3]) and two counts ofrobbery in the first degree (§ 160.15 [4]). Contrary to defendant's contention, weconclude that County Court did not abuse its discretion in denying his motion seeking tosever the November 22, 2007 robbery count, i.e., count three, from the December 3, 2007felony murder and robbery counts, i.e., counts one and two (see generally People v Owens,51 AD3d 1369, 1370-1371 [2008], lv denied 11 NY3d 740 [2008]; People v Dozier, 32 AD3d1346, 1346 [2006], lv dismissed 8 NY3d 880 [2007]). The December 3,2007 felony murder and robbery counts were joinable pursuant to CPL 200.20 (2) (a),while the two robbery counts involving different criminal transactions were joinablepursuant to CPL 200.20 (2) (c). The November 22, 2007 robbery count and theDecember 3, 2007 felony murder and robbery counts were therefore joinable under the"chain of joinder" rule (CPL 200.20 [2] [d]). Defendant failed to meet his burden ofsubmitting sufficient evidence of prejudice from the joinder to establish good cause tosever (see People v Sharp,104 AD3d 1325, 1325-1326 [2013], lv denied 21 NY3d 1009 [2013]; People v Ogborn, 57 AD3d1430, 1430 [2008], lv denied 12 NY3d 786 [2009]; see also CPL200.20 [3]).
We reject defendant's further contention that defense counsel was ineffective infailing to seek to remove a prospective juror during voir dire. While at the outset of voirdire the prospective juror made statements that raised concerns regarding his impartiality,upon further questioning he clarified his position by giving an unequivocal and credibleassurance under oath that he would be able to render an impartial verdict if chosen toserve (see People v Garrow,75 AD3d 849, 852 [2010]; People v Molano, 70 AD3d 1172, 1174 [2010], lvdenied 15 NY3d 776 [2010]). Moreover, we note that defense counsel, in notobjecting to the juror being seated, may well have had sound tactical reasons for notseeking to remove him from the jury panel, and defendant has no legal basis forchallenging that "exercise of professional judgment[ ]" by defense counsel (People v[*2]Colon, 90 NY2d 824, 826 [1997]; see Peoplev Sprowal, 84 NY2d 113, 119 [1994]). Viewing the evidence in light of the elementsof the December 3, 2007 felony murder and robbery counts as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of theevidence with respect to those counts (see generally People v Bleakley, 69 NY2d490, 495 [1987]). Finally, the sentence is not unduly harsh or severe.Present—Centra, J.P., Peradotto, Carni, Sconiers and Whalen, JJ.