Opinion
2013-06-12
The PEOPLE, etc., respondent, v. Alphonso KIRKSEY, appellant.
Neal D. Futerfas, White Plains, N.Y., for appellant, and appellant pro se. Francis D. Phillips II, District Attorney, Middletown, N.Y. (Elizabeth L. Guinup and Andrew R. Kass of counsel), for respondent.
Neal D. Futerfas, White Plains, N.Y., for appellant, and appellant pro se. Francis D. Phillips II, District Attorney, Middletown, N.Y. (Elizabeth L. Guinup and Andrew 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 first degree, attempted murder in the second degree, assault in the first degree, attempted aggravated assault on a police officer, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The Supreme Court properly denied the defendant's motion to sever certain counts in the indictment, since the nature of the proof for each of the offenses was material and admissible 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 indictment from the outset, the court lacked the statutory authority to sever them ( seeCPL 200.20[3]; People v. Bongarzone, 69 N.Y.2d 892, 895, 515 N.Y.S.2d 227, 507 N.E.2d 1083;People v. Dayton, 66 A.D.3d 797, 887 N.Y.S.2d 184;People v. Salnave, 41 A.D.3d 872, 873, 838 N.Y.S.2d 657).
The defendant's contention that the evidence was legally insufficient to establish his guilt is unpreserved for appellate review ( seeCPL 470. 05 [2]; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946). In any event, viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was 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 satisfied that the verdict was not against the weight of the evidence ( see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).
The defendant's contention that the Supreme Court erred in allowing the introduction of evidence of prior uncharged crimes or bad acts ( see generally People v. Molineux, 168 N.Y. 264, 61 N.E. 286) is unpreserved for appellate review ( seeCPL 470.05[2] ). In any event, any error was harmless, as there was overwhelming evidence of the defendant's guilt, and no significant probability that the error affected the verdict ( see People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787;People v. Louis, 99 A.D.3d 725, 726, 951 N.Y.S.2d 563).
The defendant was not deprived of the effective assistance of counsel ( see People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584;People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400).
The sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).
The defendant's remaining contentions, including those raised in his pro se supplemental brief, are without merit.