THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,V SEDRICK D. COUNCIL, DEFENDANT-APPELLANT.MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OFCOUNSEL), FOR DEFENDANT-APPELLANT.SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (JOSEPH PLUKAS OFCOUNSEL), FOR RESPONDENT.Appeal from a judgment of the Monroe County Court (James J.Piampiano, J.), rendered October 10, 2013. The judgment convicteddefendant, upon a jury verdict, of assault in the first degree,criminal possession of a weapon in the second degree and criminalpossession of a weapon in the third degree.It is hereby ORDERED that the judgment so appealed from isunanimously modified as a matter of discretion in the interest ofjustice by directing that all of the sentences shall run concurrentlyand as modified the judgment is affirmed.Memorandum: On appeal from a judgment convicting him, upon ajury verdict, of assault in the first degree (Penal Law § 120.10 [1]),criminal possession of a weapon in the second degree (§ 265.03 [3]),and criminal possession of a weapon in the third degree (§ 265.02[1]), defendant contends that the evidence is legally insufficient toestablish his identity as the perpetrator of the assault or hispossession of the firearm. By failing to make a motion to dismissthat was ” ‘specifically directed’ ” at those alleged deficiencies inthe proof (People v Gray,86 NY2d 10, 19 [1995]), defendant failed topreserve for our review his challenges to the legal sufficiency of theevidence (seePeople v Bausano,122 AD3d 1341, 1341-1342 [4th Dept2014],lv denied25 NY3d 1069 [2015]).We conclude that, when viewed in light of the elements of thecrimes as charged to the jury (see People v Danielson,9 NY3d 342, 349[2007]), the verdict is not against the weight of the evidence (seegenerallyPeople v Bleakley, 69 NY2d 490, 495 [1987]). The victimtestified that he saw defendant’s face under the light of a nearbystreet light when defendant shot him, and that defendant was someonewho he knew from the neighborhood. Further, during the execution of asearch warrant at defendant’s residence about two weeks after thevictim was shot, the police found a loaded .22 caliber sawed-off rifleunder a mattress with mail that was addressed to defendant.Thereafter, the victim identified the recovered rifle as the samefirearm that defendant used to shoot him. The jury had an opportunityto see and hear the victim’s testimony, and ” ‘[g]reat deference isaccorded to the fact-finder’s opportunity to view the witnesses, hearthe testimony and observe demeanor’ ” (People v Mateo, 2 NY3d 383, 410[2004],cert denied542 US 946 [2004];see People v Gay, 105 AD3d1427, 1428 [4th Dept 2013]).We reject defendant’s further contention that County Court erredin denying his motion to sever the assault count from the weaponspossession counts. “Two offenses, even though based on differentcriminal transactions, may be joined in the same indictment when‘[s]uch offenses, or the criminal transactions underlying them, are ofsuch nature that either proof of the first offense would be materialand admissible as evidence[-]in[-]chiefupon a trial of the second, orproof of the second would be material and admissible as evidence inchief upon a trial of the first’ ” (People v Gadsen,139 AD2d 925, 925[4th Dept 1988], quoting CPL 200.20 [2] [b]). Inasmuch as the assaultcount and the weapons counts charged in the indictment are joinableunder CPL 200.20 (2) (b), the court lacked discretion to sever them(seeCPL 200.20 [3];People v Lee, 275 AD2d 995, 997 [4th Dept 2000],lv denied95 NY2d 966 [2000]). Thus, the court properly denieddefendant’s pretrial motion for severance and his posttrial motion toset aside the verdict pursuant to CPL 330.30 (1) based on the denialof the prior motion for severance.Finally, we agree with defendant that the sentence imposed isunduly harsh and severe. We therefore modify the judgment as a matterof discretion in the interest of justice by directing that all of thesentences shall run concurrently.Entered: June 8, 2018 Mark W. BennettClerk of the Court
