People v. Clark

Oct 2, 2009
Versions:66 A.D.3d 1489
885 N.Y.S.2d 797

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury trial of, inter alia, two counts each of criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1], [12]) and criminally using drug paraphernalia in the second degree (§ 220.50 [2], [3]). We reject the contention of defendant that County Court abused its discretion in denying his motion to sever his trial from that of his codefendant. “The ‘core of each defense [was not] in irreconcilable conflict with the other and . . . there [was no] significant danger, as both defenses [were] portrayed to the trial court, that the conflict alone would lead the jury to infer defendant‘s guilt’ ” (People v Bolling, 49 AD3d 1330, 1332 [2008], quoting People v Mahboubian, 74 NY2d 174, 184 [1989]; see People v Cardwell, 78 NY2d 996, 997-998 [1991]). Although at least one comment made by the codefendant‘s attorney on summation was unfavorable to defendant, that single display of hostility did not warrant severance (see People v Watkins, 10 AD3d 665, 665-666 [2004], lv denied 3 NY3d 761 [2004]). Also contrary to the contention of defendant, he did not establish his entitlement to severance on the ground that he would have been subjected to prejudicial cross-examination by the attorney for his codefendant had defendant testified (see generally People v McGee, 68 NY2d 328, 333 [1986]). “At no stage of the proceedings [did] defendant establish[ ] that his potential testimony would have given the codefendant an incentive to impeach his credibility” (People v Frazier, 309 AD2d 534, 534 [2003], lv denied 1 NY3d 571 [2003]). Present—Smith, J.P., Fahey, Carni, Pine and Gorski, JJ.