Opinion
July 14, 1995
Appeal from the Erie County Court, LaMendola, J.
Present — Green, J.P., Lawton, Wesley, Davis and Boehm, JJ.
Judgment unanimously modified as a matter of discretion in the interest of justice and as modified affirmed in accordance with the following Memorandum: We conclude that defendant's conviction of murder in the second degree (Penal Law § 125.25; § 20.00) is supported by legally sufficient evidence and is not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495). We further conclude that the trial court properly denied the motion of defendant to sever his trial from that of his codefendant. The defenses presented by defendant and his codefendant were not in irreconcilable conflict so as to warrant severance (see, People v. Curran, 197 A.D.2d 860, lv denied 82 N.Y.2d 893; People v. Glover, 165 A.D.2d 761, 762, lv denied 77 N.Y.2d 877).
We reject the contention that the court erred in permitting a prosecution witness to testify that defendant assaulted him approximately two weeks before trial. That evidence of possible witness tampering by defendant was properly admitted as probative of defendant's consciousness of guilt (see, People v. Frank, 174 A.D.2d 1009, lv denied 79 N.Y.2d 857; People v. Reyes, 162 A.D.2d 357, lv denied 76 N.Y.2d 896; see also, People v. Shilitano, 218 N.Y. 161, 179, rearg denied 218 N.Y. 702). Moreover, any prejudicial effect of that evidence was ameliorated because defendant had an opportunity to cross-examine the witness fully with regard to the incident (see, People v. Whaley, 144 A.D.2d 510, lv denied 73 N.Y.2d 897).
We also reject the contention of defendant that he was denied a fair trial by the prosecutor's failure to provide Brady material in a timely manner; defense counsel received the material before trial and was able to use it to cross-examine the People's witnesses and as evidence during his case (see, People v. Cortijo, 70 N.Y.2d 868, 870; People v. Perez, 184 A.D.2d 1033, lv denied 80 N.Y.2d 932).
Upon our review of the record, we determine that the sentence imposed on defendant's conviction of murder in the second degree is unduly severe and should be reduced (see, People v. Delgado, 80 N.Y.2d 780; People v. Suitte, 90 A.D.2d 80, 86-87; People v Notey, 72 A.D.2d 279). Therefore, as a matter of discretion in the interest of justice (see, CPL 470.15 [b]), we modify the sentence by reducing it from 20 years to life to 15 years to life (see, Penal Law § 70.00 [a]; [3] [a]).
We have reviewed the remaining contentions of defendant and conclude that they are without merit.