Opinion
KA 00-00222.
October 1, 2004.
Appeal from a judgment of the Monroe County Court (John J. Connell, J.), rendered November 8, 1999. The judgment convicted defendant, upon a jury verdict, of murder in the second degree (five counts).
Before: Pine, J.P., Scudder, Kehoe, Martoche and Lawton, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial of five counts of murder in the second degree (Penal Law § 125.25, [3]). Contrary to the contention of defendant, County Court did not abuse its discretion in denying his severance motion. "[D]efendant failed to meet his burden of establishing that he would be `unduly and genuinely prejudiced by the joint trial of the [unrelated murder] charges'" ( People v. Lovett, 303 AD2d 952, 952, lv denied 100 NY2d 584, quoting People v. Brown, 254 AD2d 781, 782, lv denied 92 NY2d 1029). Defendant failed to preserve for our review his further contention that the court's instructions concerning the separate counts were inadequate ( see CPL 470.05) and, in any event, that contention lacks merit ( see generally People v. Canty, 60 NY2d 830, 831-832). Even assuming, arguendo, that the challenge by defendant to the voluntariness of his confession was timely raised, we nevertheless conclude that it is without merit ( see generally People v. Mateo, 2 NY3d 383, 413-414, cert denied ___ US ___, 124 S Ct 2929). Finally, by challenging the voluntariness of the confession, defendant opened the door to the admission of the full confession ( see id. at 416-417).