| People v Weather |
| 2020 NY Slip Op 02421 [182 AD3d 1043] |
| April 24, 2020 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Leonard Weather, Appellant. |
David J. Pajak, Alden, for defendant-appellant.
Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Matthew J. Doran, A.J.),rendered June 16, 2017. The judgment convicted defendant upon a jury verdict ofcriminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of criminal possession of a weapon in the second degree (Penal Law§ 265.03 [3]). Viewing the evidence in the light most favorable to thePeople, as we must (see People v Contes, 60 NY2d 620, 621 [1983]), we rejectdefendant's contention that the evidence is legally insufficient to support the conviction.At a joint trial, the People presented evidence that the two codefendants broke into theresidence of the victim, stole cash and two cell phones, and physically assaulted thevictim. The victim testified that, during the assault, the first codefendant told the secondcodefendant, "tell [defendant] to get the gun." The victim further testified that defendantarrived soon after carrying a revolver, which he handed to the first codefendant, whothen shot the victim in his buttock. A witness for the defense testified that the victimshowed him a gun immediately prior to the incident and, although the witness was notpresent for the altercation, the victim told the witness afterward that he had shot himself."Confronted with the conflicting testimony of [the victim and the witness], the jury couldrationally conclude—as this jury evidently did—that the victim'srecollection was credible and accurate" (People v Delamota, 18 NY3d 107, 116 [2011]), and wetherefore conclude that there is sufficient evidence to support the jury's inference thatdefendant possessed a loaded firearm. Viewing the evidence in light of the elements ofthe crime as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), wefurther conclude that the verdict is not against the weight of the evidence (seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]).
Defendant's contention that County Court should have severed his trial from that ofthe codefendants is not preserved for our review because defendant did not move for aseverance (see People vEvans, 142 AD3d 1291, 1292 [4th Dept 2016], lv denied 28 NY3d 1144[2017]; see generally CPL 470.05 [2]). In any event, the charges againstdefendant and the codefendants were properly joined inasmuch as they were based upona common scheme or plan (see CPL 200.40 [1] [b]; People v Wright, 166 AD3d1022, 1023-1024 [2d Dept 2018], lv denied 32 NY3d 1211 [2019]).Moreover, the evidence against defendant and the codefendants was "supplied by thesame eyewitness . . . , and . . . defendant's defense was by nomeans 'antagonistic' to that of the codefendant[s]" (Wright, 166 AD3d at 1024,citing People v Mahboubian, 74 NY2d 174, 186 [1989]).
We further conclude that defendant has not established that he was denied effectiveassistance of counsel (see generally People v Benevento, 91 NY2d 708, 712-713[1998]). Inasmuch as the charges against defendant and the codefendants were properlyjoined, "[a]ny motion to sever . . . the indictment would have had little or nochance of success, and thus counsel's failure to make such a . . . motion. . . does not indicate ineffectiveness of counsel" (People v Lukens, 107 AD3d1406, 1409 [4th Dept 2013], lv denied 22 NY3d 957 [2013] [internalquotation marks omitted]; seePeople v Stultz, 2 NY3d 277, 287 [2004], rearg denied 3 NY3d 702[2004]), and defendant has not shown the absence of strategic or other legitimateexplanations for defense counsel's failure to move for a discretionary severance (see People v McGee, 20 NY3d513, 520-521 [2013]). Defendant's contention that the court failed to give a properlimiting instruction to the jury is also unpreserved for appellate review (see CPL470.05 [2]; People v Autry, 75 NY2d 836, 838-839 [1990]) and, in any event, iswithout merit. Finally, the sentence is not unduly harsh or severe.Present—Whalen, P.J., Centra, Peradotto, Winslow and Bannister,JJ.