Opinion
KA 99-05622.
December 31, 2003.
Appeal from a judgment of Supreme Court, Erie County (Rossetti, J.), entered May 31, 1996, convicting defendant after a jury trial of, inter alia, murder in the second degree (two counts).
KEVIN J. BAUER, ALBANY, FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (PAUL J. WILLIAMS, III, OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: PINE, J.P., WISNER, SCUDDER, GORSKI, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him of, inter alia, two counts of murder in the second degree (Penal Law § 125.25, [3]) and one count of criminal possession of a weapon in the second degree (§ 265.03 [2]), defendant contends that the verdict is against the weight of the evidence. We disagree. Defendant admitted killing the victim to not less than four people, and at least three people observed him with a knife shortly after the murder. Further, one of the accomplices testified that defendant was involved in the criminal acts and that the accomplices left defendant alone with the victim, who had not been harmed at the time the accomplices left. The fact that one of the victim's sons was confused or mistaken about the perpetrator's identity does not render the verdict against the weight of the evidence. There is no support in the record for defendant's contention that the jury failed to give the evidence the appropriate weight ( see generally People v. Bleakley, 69 N.Y.2d 490, 495).
Contrary to the further contention of defendant, Supreme Court did not deprive him of his right to counsel when it assigned him new counsel pursuant to a motion by the People to disqualify an attorney who was present at an earlier appearance before the court. Although it is questionable whether defendant had actually retained that attorney, we nevertheless address the merits of defendant's contention. The attorney admitted that he had a conflict of interest because he also represented a person against whom defendant had given a statement in an unrelated homicide. "Although a defendant has the right to counsel of his choice, that right is not absolute" ( People v. Gordon, 272 A.D.2d 133, 134, lv denied 95 N.Y.2d 890; see Matter of Abrams, 62 N.Y.2d 183, 196; see generally Wheat v. United States, 486 U.S. 153), and here the attorney could not represent both defendant and another criminal defendant against whom defendant was a potential prosecution witness ( see People v. Green, 145 A.D.2d 929, 930; see generally People v. Harris, 99 N.Y.2d 202, 210).
With respect to the contentions of defendant that the conviction is not supported by legally sufficient evidence, that the court erred in allowing witnesses to identify defendant and that the court erred in denying his CPL article 330 motion, defendant has failed to develop those contentions adequately in his brief and we therefore deem them abandoned ( see People v. Jansen, 145 A.D.2d 870, 871, lv denied 73 N.Y.2d 923; see generally Ciesinski v. Town of Aurora, 202 A.D.2d 984). Defendant failed to object to comments of the prosecutor and court made at sentencing and thus failed to preserve for our review his contentions that those comments were improper ( see 470.05 [2]; People v. Rusho, 291 A.D.2d 855, 856, lv denied 98 N.Y.2d 680; People v. Snyder, 249 A.D.2d 643). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice ( see 470.15 [6] [a]). The consecutive sentences imposed by the court are neither unduly harsh nor severe.