Opinion
February 27, 1989
Appeal from the Supreme Court, Kings County (Egitto, J.).
Ordered that the judgment is modified, on the law, by reducing the sentence imposed on the conviction for criminal possession of a weapon in the second degree from 7 1/2 to 15 years' to 5 to 15 years' imprisonment; as so modified, the judgment is affirmed.
The defendant's arguments presented on this appeal with respect to the hearing court's ruling denying suppression of his oral and videotaped statements have not been preserved for appellate review since the contentions were not raised at the hearing (see, People v Tutt, 38 N.Y.2d 1011; People v Cusumano, 108 A.D.2d 752, 754). We decline to address them in the interest of justice.
The defendant's further contention that the trial court erred by denying his motion for a separate trial from his codefendant is without merit. As we stated in People v Centino ( 133 A.D.2d 776, 777), under similar circumstances, "Where proof against the two defendants is to be supplied by the same evidence, only the most cogent reasons warrant a severance (People v Bornholdt, 33 N.Y.2d 75, 87, cert denied sub nom. Victory v New York, 416 U.S. 905). Since the evidence against the defendant and his codefendant in this case was virtually identical, we discern no error in the denial of the motion for separate trials (see, e.g., People v Cruz, 66 N.Y.2d 61, revd on other grounds Cruz v New York, 481 US [186], 107 S Ct 1714). Similarly unavailing is the defendant's argument that he was prejudiced by the admission in evidence of his codefendant's statement. The codefendant testified at trial, thereby preserving the defendant's right to confrontation (see, Cruz v New York, supra). In addition, the jury was properly instructed not to consider the codefendant's out-of-court statement against the defendant."
We agree with the defendant that the minimum term of imprisonment imposed upon his conviction for criminal possession of a weapon in the second degree could not exceed one third of the maximum term imposed (see, Penal Law § 70.00, 265.03 Penal) and that sentence has been modified accordingly. However, we find no basis to otherwise modify the imposed sentences (see, People v Suitte, 90 A.D.2d 80). Mangano, J.P., Brown, Rubin and Kooper, JJ., concur.