Opinion
KA 00-02067
October 1, 2002.
Appeal from a judgment of Supreme Court, Monroe County (Mark, J.), entered April 13, 2000, convicting defendant after a jury trial of, inter alia, robbery in the first degree (three counts).
EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (SHIRLEY A. GORMAN OF COUNSEL), FOR DEFENDANT-APPELLANT.
HOWARD R. RELIN, DISTRICT ATTORNEY, ROCHESTER (MICHAEL J. NOLAN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: WISNER, J.P., HURLBUTT, SCUDDER, AND KEHOE, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant was indicted for crimes arising from the alleged assault of his brother on July 30, 1999 and the robbery of the same brother and burglary of that brother's home on August 9, 1999. After a jury trial, defendant was acquitted of assault in the second degree (Penal Law § 120.05) and convicted of reckless endangerment in the second degree (§ 120.20) in connection with the first incident, and he was convicted of robbery in the first degree (three counts) (§ 160.15 [2]-[4]) and burglary in the first degree (§ 140.30 [1]) in connection with the second incident. Defendant's contention that Supreme Court erred in charging the jury with respect to the crimes arising from the second incident is not preserved for our review ( see CPL 470.05), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see 470.15 [6] [a]). We reject the further contentions of defendant that he may have been convicted of unindicted crimes with respect to the second incident ( see People v. Johnson, 289 A.D.2d 1024, 1024, lv denied 98 N.Y.2d 638) and that the verdict is against the weight of the evidence ( see People v. Bleakley, 69 N.Y.2d 490, 495).
Defendant failed to preserve for our review his additional contention that the conviction of robbery and burglary is not supported by legally sufficient evidence ( see People v. Gray, 86 N.Y.2d 10, 19). Defendant also failed to preserve for our review his contention that the court should have given an alibi charge with respect to the second incident ( see People v. Hogan, 292 A.D.2d 834). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice ( see CPL 470.15 [a]). Finally, we conclude that defendant received meaningful representation ( see People v. Baldi, 54 N.Y.2d 137, 147) and that any error in the court's denial of defendant's motion to sever the counts with respect to the two incidents is harmless ( see People v. Quartieri, 171 A.D.2d 889, 892, lv denied 78 N.Y.2d 1079; People v. Ferringer, 120 A.D.2d 101, 111; see also People v. Crimmins, 36 N.Y.2d 230, 241-242).