        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1176
KA 11-01120
PRESENT: SMITH, J.P., CENTRA, FAHEY, CARNI, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ANTHONY GRIFFIN, DEFENDANT-APPELLANT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR
DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Anthony F.
Aloi, J.), rendered September 15, 2010. The judgment convicted
defendant, upon a jury verdict, of burglary in the first degree (two
counts), robbery in the first degree, robbery in the second degree
(three counts), assault in the second degree, criminal possession of a
weapon in the third degree, intimidating a victim or witness in the
second degree (two counts), endangering the welfare of a child,
conspiracy in the fourth degree, criminal solicitation in the fourth
degree, criminal possession of a controlled substance in the second
degree, criminal possession of a controlled substance in the third
degree, menacing in the third degree, criminal contempt in the second
degree (two counts) and making a punishable false written statement.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified as a matter of discretion in the interest of
justice and on the law by reversing those parts convicting defendant
of criminal possession of a weapon in the third degree and
intimidating a victim or witness in the second degree and dismissing
counts 8 through 10 of the indictment, and as modified the judgment is
affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of, inter alia, two counts each of burglary in the
first degree (Penal Law § 140.30 [2], [3]), intimidating a victim or
witness in the second degree (§ 215.16 [1], [2]) and criminal contempt
in the second degree (§ 215.50 [3]), three counts of robbery in the
second degree (§ 160.10 [1], [2] [a]; [3]), and one count each of
robbery in the first degree (§ 160.15 [3]), assault in the second
degree (§ 120.05 [6]) and criminal possession of a weapon in the third
degree (§ 265.02 [1]). We reject defendant’s contention that County
Court erred in denying his motion to sever the counts of the
indictment relating to the order of protection and drug possession
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                                                         KA 11-01120

from the robbery and burglary counts. Where counts of an indictment
are properly joined because “either proof of the first offense would
be material and admissible as evidence in chief upon a trial of the
second, or proof of the second would be material and admissible as
evidence in chief upon a trial of the first” (CPL 200.20 [2] [b]), the
trial court has no discretion to sever counts pursuant to CPL 200.20
(3) (see People v Bongarzone, 69 NY2d 892, 895; People v Lane, 56 NY2d
1, 7). Here, the counts were properly joined pursuant to CPL 200.20
(2) (b), and thus the court “lacked statutory authority to grant
defendant’s [severance] motion” (People v Murphy, 28 AD3d 1096, 1097,
lv denied 7 NY3d 760). Defendant “did not seek to reopen the
[Huntley] hearing based on the trial testimony or move for a mistrial”
(People v Kendrick, 256 AD2d 420, 420, lv denied 93 NY2d 900), and he
thus failed to preserve for our review his further contention that the
court erred in refusing to suppress his statement to the police based
on that trial testimony. We decline to exercise our power to review
that contention as a matter of discretion in the interest of justice
(see CPL 470.15 [6] [a]).

     Contrary to defendant’s contention, the testimony of the victim
concerning the uncharged crimes of rape and sexual assault was
admissible “as background material that completed the narrative of the
episode,” and the court properly instructed the jury that the
testimony was admitted for that limited purpose (People v Strong, 234
AD2d 990, 990, lv denied 89 NY2d 1016; see also People v Robinson, 283
AD2d 989, 991, lv denied 96 NY2d 906).

     We agree with defendant, however, that the conviction of criminal
possession of a weapon in the third degree and intimidating a victim
or witness in the second degree is not supported by legally sufficient
evidence. Although defendant failed to preserve his contention with
respect to those crimes for our review (see People v Devane, 78 AD3d
1586, 1586-1587, lv denied 16 NY3d 858), we nevertheless exercise our
power to review it as a matter of discretion in the interest of
justice (see CPL 470.15 [6] [a]), and we modify the judgment
accordingly. With respect to criminal possession of a weapon, the
evidence is legally insufficient to establish either that defendant
knew that his coconspirator possessed a knife or that he intended to
use it unlawfully against another (see Penal Law §§ 265.01 [2]; 265.02
[1]; People v Smith, 87 AD3d 1169, 1170). With respect to
intimidating a victim or witness, the evidence likewise is legally
insufficient to establish that defendant shared his coconspirator’s
intent to cause physical injury to the victim during the burglary and
robbery (see § 215.16 [1], [2]; cf. People v Boler, 4 AD3d 768, 769,
lv denied 2 NY3d 761). Although defendant preserved for our review
his legal insufficiency contention with respect to the remaining
crimes, we conclude that it lacks merit (see generally People v
Bleakley, 69 NY2d 490, 495). Furthermore, viewing the evidence in
light of the elements of the remaining crimes as charged to the jury
(see People v Danielson, 9 NY3d 342, 349), we conclude that the
verdict is not against the weight of the evidence (see generally
Bleakley, 69 NY2d at 495).
                                 -3-                          1176
                                                         KA 11-01120

     Defendant’s challenge to the severity of the sentence lacks
merit. Although defendant is correct that the aggregate maximum term
exceeds the 50-year statutory limitation (see Penal Law former § 70.30
[1] [e] [vi]), the Department of Corrections and Community Supervision
will “calculate the aggregate maximum length of imprisonment
consistent with the applicable [statutory] limitation” and reduce the
maximum term accordingly (People v Moore, 61 NY2d 575, 578; see People
v Jurgensen, 288 AD2d 937, 938, lv denied 97 NY2d 684). We have
reviewed defendant's remaining contentions and conclude that they are
without merit.




Entered:   November 15, 2013                   Frances E. Cafarell
                                               Clerk of the Court
