| People v McGuire |
| 2017 NY Slip Op 02206 [148 AD3d 1578] |
| March 24, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Richard McGuire, Appellant. |
Mark D. Funk, Conflict Defender, Rochester (Kathleen P. Reardon of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Scott Myles of counsel), for respondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.), rendered June8, 2011. The judgment convicted defendant, upon a jury verdict, of criminal possession of aweapon in the second degree and criminal possession of a weapon in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the lawand a new trial is granted on counts two and four of the indictment.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, ofcriminal possession of a weapon in the second degree (Penal Law § 265.03 [3]) andcriminal possession of a weapon in the third degree (§ 265.02 [1]). We concludethat, when viewed in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), the verdict is not against the weight of the evidence (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]; People v Carrasquillo, 142 AD3d 1359, 1360 [2016]).
As the People concede, however, County Court erred in refusing to sever defendant's trialfrom that of his codefendants (see CPL 200.40 [1]). We note at the outset that, "[w]hile atrial court must decide a severance motion 'prospectively, based on its discretionary assessmentsof the strategies and evidence as forecast by the parties,' appellate courts have the benefit of a'full trial record by which they may, within the ambit of their . . . review powers,determine the existence of irreconcilable conflict and its possible effect on the verdict' "(People v Cardwell, 78 NY2d 996, 998 [1991], quoting People v Mahboubian, 74NY2d 174, 184-185 [1989]).
Defendant and his two codefendants were jointly charged with various offenses arising fromthe seizure by the police of a handgun from the vehicle in which defendant and his codefendantswere riding. In support of his motion for severance, defendant contended that his counsel hadconsulted with counsel for his codefendants and determined that their respective trial strategieswere irreconcilable because the codefendants had made statements implicating one another in thepossession of the weapon. During the trial, defendant did not take the stand, and defense counselattempted to establish that defendant did not possess the handgun. The codefendants testified thatthey did not know that defendant had a handgun but that, just as the police were stopping thevehicle, defendant pulled a gun from his waistband and tried to give it to one of the codefendants.When that codefendant refused to take the gun, defendant tried to hide it beneath or behind theother codefendant's seat. Thus, both codefendants denied possessing the gun and testified that itwas in defendant's possession. Additionally, one of the codefendants testified that, following thearrest, defendant offered him $10,000 to take responsibility for the gun.
We conclude that the codefendants' respective attorneys "took an aggressive adversarialstance against [defendant at trial], in effect becoming a second [and a third] prosecutor"(Cardwell, 78 NY2d at 998; seePeople v Nixon, 77 AD3d 1443, 1444 [2010]). We further conclude that the" 'essence or core of the defenses [were] in conflict, such that the jury, in order to believethe core of one defense, . . . necessarily [had to] disbelieve the core of theother' " (Mahboubian, 74 NY2d at 184; see Nixon, 77 AD3d at 1444).Thus, in retrospect (see Cardwell, 78 NY2d at 998), there was "a significant danger. . . that the conflict alone would lead the jury to infer defendant's guilt," andtherefore severance was required (Mahboubian, 74 NY2d at 184; seeCardwell, 78 NY2d at 998; Nixon, 77 AD3d at 1444). Consequently, we reverse thejudgment and grant a new trial on counts two and four of the indictment. Inasmuch as bothcodefendants were acquitted at trial, defendant's severance motion itself is now moot (seeNixon, 77 AD3d at 1444).
In view of our determination, we do not consider defendant's remaining contentions.Present—Whalen, P.J., Centra, DeJoseph, NeMoyer and Troutman, JJ.