Opinion
1261 KA 15–00359
12-20-2019
The PEOPLE of the State of New York, Respondent, v. Michael A. WALTON, Defendant–Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., NEMOYER, TROUTMAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER 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 two counts of murder in the second degree ( Penal Law § 125.25[1] ), four counts of criminal possession of a weapon in the second degree (§ 265.03[1] [b]; [3] ), and one count of prohibited use of weapons (§ 265.35[3] ), arising from three separate incidents. We reject the contention of defendant that Supreme Court erred in refusing to sever the counts related to the first incident from the counts related to the third incident. The relevant offenses were joinable under CPL 200.20(2)(b) and thus, once they were properly joined, the court lacked the statutory authority to sever (see People v. Murphy , 28 A.D.3d 1096, 1097, 813 N.Y.S.2d 837 [4th Dept. 2006], lv denied 7 N.Y.3d 760, 819 N.Y.S.2d 885, 853 N.E.2d 256 [2006] ; People v. Cornell , 17 A.D.3d 1010, 1011, 794 N.Y.S.2d 226 [4th Dept. 2005], lv denied 5 N.Y.3d 805, 803 N.Y.S.2d 34, 836 N.E.2d 1157 [2005] ; People v. Alston , 264 A.D.2d 685, 686, 696 N.Y.S.2d 28 [1st Dept. 1999], lv denied 94 N.Y.2d 876, 705 N.Y.S.2d 8, 726 N.E.2d 485 [2000] ).
We further reject defendant's contention that he was deprived of a fair trial when the court admitted allegedly inflammatory photographic and video evidence. Such evidence "should be excluded only if its sole purpose is to arouse the emotions of the jury and to prejudice the defendant" ( People v. Pobliner , 32 N.Y.2d 356, 370, 345 N.Y.S.2d 482, 298 N.E.2d 637 [1973], rearg. denied 33 N.Y.2d 657, 348 N.Y.S.2d 1030, 303 N.E.2d 710 [1973], cert denied 416 U.S. 905, 94 S.Ct. 1609, 40 L.Ed.2d 110 [1974] ; see People v. Stevens , 76 N.Y.2d 833, 835, 560 N.Y.S.2d 119, 559 N.E.2d 1278 [1990] ). When allegedly inflammatory photographs and videos are relevant to a material issue at trial, the court has broad discretion to determine whether their probative value outweighs any prejudice to the defendant (see Stevens , 76 N.Y.2d at 835, 560 N.Y.S.2d 119, 559 N.E.2d 1278 ). Here, the disputed evidence was relevant to material issues in the case, and the court did not abuse its discretion in admitting it (see generally People v. Webb , 60 A.D.3d 1291, 1293, 875 N.Y.S.2d 665 [4th Dept. 2009], lv denied 12 N.Y.3d 930, 884 N.Y.S.2d 711, 912 N.E.2d 1092 [2009] ).