Opinion
January 24, 1986
Appeal from the Supreme Court, Erie County, Stiller, J.
Present — Callahan, J.P., Denman, O'Donnell, Pine and Schnepp, JJ.
Judgment unanimously affirmed. Memorandum: The trial court did not abuse its discretion in refusing to sever defendant's trial from that of his codefendant. Defendant's motion was untimely (CPL 255.20, 200.40 Crim. Proc. [1]) and his showing insufficient. Upon review of the record, we find that there was no impairment of substantial rights unseen before trial (see, People v Fisher, 249 N.Y. 419, 427). The alleged errors in jury instructions were not preserved and we do not find that defendant was deprived of a fair trial (see, CPL 470.15 [a]; People v Robinson, 36 N.Y.2d 224, 228, rearg denied 37 N.Y.2d 786; People v Fragale, 60 A.D.2d 972). There was sufficient evidence from which the jury could find that defendant, with intent to kill, shot the victim at least once, causing a wound which contributed to his death (see, People v Cicchetti, 44 N.Y.2d 803, 804-805). Defendant's sentence was not harsh and excessive.