Opinion
589 KA 18-00719
09-30-2022
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. HERIBERTO RIVERA-MATEO, DEFENDANT-APPELLANT.
JILL L. PAPERNO, ACTING PUBLIC DEFENDER, ROCHESTER (WILLIAM CLAUSS OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KAYLAN C. PORTER OF COUNSEL), FOR RESPONDENT.
JILL L. PAPERNO, ACTING PUBLIC DEFENDER, ROCHESTER (WILLIAM CLAUSS OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KAYLAN C. PORTER OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CENTRA, PERADOTTO, AND NEMOYER, JJ.
Appeal from a judgment of the Supreme Court, Monroe County (Alex R. Renzi, J.), rendered November 15, 2017. The judgment convicted defendant upon a jury verdict of assault in the second degree and criminal possession of a weapon in the second degree (two counts).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of assault in the second degree (Penal Law § 120.05 [2]) and two counts of criminal possession of a weapon in the second degree (§ 265.03 [1] [b]; [3]). Contrary to defendant's contention, Supreme Court properly denied his repeated severance motions, inasmuch as he failed to demonstrate the requisite good cause for a discretionary severance from the codefendant's trial (see CPL 200.40 [1]; People v Lundy, 178 A.D.3d 1389, 1389 [4th Dept 2019], lv denied 35 N.Y.3d 994 [2020]; see generally People v Mahboubian, 74 N.Y.2d 174, 183 [1989]). As we held in the codefendant's appeal, defendant failed to show that his defense was in irreconcilable conflict with that of the codefendant before the trial, and no such conflict arose during the trial (see People v Rivera, 201 A.D.3d 1346, 1347 [4th Dept 2022], lv denied 38 N.Y.3d 953 [2022]). Although defendant is correct that the codefendant would not have been bound by the court's Sandoval ruling (see People v McGee, 68 N.Y.2d 328, 332-333 [1986]; see also People v Wilson, 120 A.D.3d 1531, 1533-1534 [4th Dept 2014], affd 28 N.Y.3d 67 [2016], rearg denied 28 N.Y.3d 1158 [2017]), the fact that defendant has a prior conviction did not automatically entitle him to severance to prevent the codefendant's attorney from questioning him regarding that conviction (see People v Murray, 155 A.D.3d 1106, 1109 [3d Dept 2017], lv denied 31 N.Y.3d 1015 [2018]). There was no "significant possibility" that each defense would prejudice the other (McGee, 68 N.Y.2d at 333) inasmuch as defendant did not show that" 'his potential testimony would have given the codefendant an incentive to impeach his credibility'" (People v Clark, 66 A.D.3d 1489, 1489 [4th Dept 2009], lv denied 13 N.Y.3d 906 [2009]; see People v Campbell, 118 A.D.3d 1464, 1466 [4th Dept 2014], lv denied 24 N.Y.3d 959 [2014], reconsideration denied 24 N.Y.3d 1218 [2015]).
Contrary to defendant's contention, the court did not err in refusing to charge the jury on the defense of justification. Viewing the record in the light most favorable to defendant (see People v Brown, 33 N.Y.3d 316, 324 [2019], rearg denied 33 N.Y.3d 1136 [2019]), we conclude that "there is no reasonable view of the evidence that [defendant] was anything other than the initial aggressor in his use of deadly physical force," and thus "he is not entitled to a jury instruction on justification" (id. at 325; see People v Taylor, 134 A.D.3d 508, 509 [1st Dept 2015], lv denied 28 N.Y.3d 1075 [2016]; People v Caldwell, 98 A.D.3d 1272, 1273 [4th Dept 2012], lv denied 20 N.Y.3d 985 [2012]).
Viewing the evidence in light of the elements of the crimes of which defendant was convicted as charged to the jury (see People v Danielson, 9 N.Y.3d 342, 349 [2007]), we reject defendant's further contention that the verdict is against the weight of the evidence (see generally People v Bleakley, 69 N.Y.2d 490, 495 [1987]). In addition, the sentence is not unduly harsh or severe.
We have reviewed defendant's remaining contentions and conclude that none warrants modification or reversal of the judgment.