Opinion
December 22, 1995
Appeal from the Erie County Court, McCarthy, J.
Present — Pine, J.P., Fallon, Wesley, Balio and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him of nine counts of murder in the second degree and other crimes arising out of the shooting deaths of three individuals and the wounding of a fourth. Defendant contends that his trial should have been severed from that of his codefendant because the core of each defendant's defense was in irreconcilable conflict with the other and there was a significant danger that the conflict alone would lead the jury to infer defendant's guilt (see, People v Mahboubian, 74 N.Y.2d 174, 184-186). Although defendant made an oral motion to sever just prior to jury selection (cf., CPL 255.20; People v Harvey, 198 A.D.2d 828, lv denied 83 N.Y.2d 805; People v Verkey, 185 A.D.2d 622, 623-624), he failed to argue the grounds advanced on appeal and thus has failed to preserve those grounds for our review (see, People v Jackson, 203 A.D.2d 956, 957, lv denied 84 N.Y.2d 827; People v Hill, 190 A.D.2d 990, lv denied 81 N.Y.2d 1014). In any event, we conclude that defendant's contention is without merit. Each defendant claimed that he was not present at the time of the shootings, and knew nothing about them; thus, the "core" of each defense is not in irreconcilable conflict with the other (see, People v Hill, supra; People v Glover, 165 A.D.2d 761, 762, lv denied 77 N.Y.2d 877; cf., People v Mahboubian, supra, 74 N.Y.2d, at 185-186).
The evidence, viewed in the light most favorable to the People, is legally sufficient to support a finding of guilt beyond a reasonable doubt (see, People v Cabey, 85 N.Y.2d 417, 420). The sentence imposed is not unduly harsh or severe.