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

1012
KA 09-01372
PRESENT: CENTRA, J.P., FAHEY, SCONIERS, GREEN, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

PAUL A. OSBORNE, DEFENDANT-APPELLANT.


KATHLEEN E. CASEY, BARKER, FOR DEFENDANT-APPELLANT.

PAUL A. OSBORNE, DEFENDANT-APPELLANT PRO SE.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (THERESA L. PREZIOSO
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Niagara County Court (Sara S.
Sperrazza, J.), rendered May 11, 2009. The judgment convicted
defendant, upon a jury verdict, of murder in the second degree (three
counts), robbery in the first degree (three counts), attempted robbery
in the first degree, criminal use of a firearm in the first degree,
criminal possession of a weapon in the second degree, and assault in
the second degree (two counts).

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by directing that the sentences
imposed on counts 1 through 3 of the indictment shall run concurrently
with the sentence imposed on count 12 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, three counts each of murder in the
second degree (Penal Law § 125.25 [1], [3] [intentional and felony
murder]) and robbery in the first degree (§ 160.15 [2] - [4]), two
counts of assault in the second degree (§ 120.05 [2], [6]), and one
count of attempted robbery in the first degree (§§ 110.00, 160.15
[2]). We reject defendant’s contention in his main brief that County
Court should have suppressed the DNA evidence. The evidence before
the court established that defendant voluntarily agreed to provide a
saliva sample for DNA testing (see People v Dail, 69 AD3d 873, 874, lv
denied 14 NY3d 839, 845). “[T]he fact that the police officers did
not advise the defendant . . . of [his] right to refuse consent does
not, by itself, negate the consent otherwise freely given” (People v
Auxilly, 173 AD2d 627, 628, lv denied 78 NY2d 1125). Defendant’s
further contention in his main brief that the court should have
suppressed the identification evidence of one of the witnesses is also
without merit. The People established “the reasonableness of the
                                 -2-                          1012
                                                         KA 09-01372

police conduct and the lack of any undue suggestiveness . . . [and
defendant did not meet his] ultimate burden of proving that the
procedure was unduly suggestive” (People v Chipp, 75 NY2d 327, 335,
cert denied 498 US 833).

     Defendant in addition contends in his main brief that the court
should have granted his motion to sever the trial from that of his
codefendant because there was DNA and fingerprint evidence that
implicated defendant but not the codefendant, and the codefendant’s
attorney emphasized that to the jury, in effect becoming a second
prosecutor. Inasmuch as defendant sought severance on a different
ground, his present contention is not preserved for our review (see
People v Hall, 48 AD3d 1032, 1033, lv denied 11 NY3d 789). In any
event, his contention is without merit. “ ‘[T]he fact that [the
codefendant’s attorney] stressed the relative weakness of the case
against his client did not present an irreconcilable conflict
warranting severance’ ” (People v Bolling, 49 AD3d 1330, 1332). We
further conclude that the codefendant’s attorney did not act as a
second prosecutor (see id.; see generally People v Cardwell, 78 NY2d
996, 998), inasmuch as he simply argued to the jury that there was no
DNA or fingerprint evidence implicating his client (see People v
Peisahkman, 29 AD3d 352, 352-353). Indeed, he “did not take an
aggressive adversarial stance against defendant or elicit damaging
evidence that had not been brought out by the People” (People v
Seeley, 22 AD3d 225, 226, lv denied 6 NY3d 758).

     Defendant also failed to preserve for our review his contention
in his main brief that the evidence is legally insufficient to support
the conviction of assault in the second degree under Penal Law §
120.05 (2) and two of the three counts of murder in the second degree
(§ 125.25 [1], [3]; see People v Gray, 86 NY2d 10, 19). Viewing the
evidence in light of the elements of the 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
People v Bleakley, 69 NY2d 490, 495). We reject the further
contention of defendant raised in his main and pro se supplemental
briefs that he was denied the right to effective assistance of counsel
based on the failure of defense counsel to challenge the legal
sufficiency of the evidence on specific grounds and to make certain
objections. Rather, viewing defense counsel’s representation as a
whole, we conclude that defendant received effective assistance of
counsel (see generally People v Baldi, 54 NY2d 137, 147).

     Defendant waived his contention in his pro se supplemental brief
that he was denied his right to testify before the grand jury,
inasmuch as he failed to move to dismiss the indictment on that ground
within the requisite five-day statutory period (see CPL 190.50 [5]
[c]; People v Braction, 26 AD3d 778, lv denied 6 NY3d 832, 846).
Contrary to defendant’s further contention in his pro se supplemental
brief, he was not denied his right to counsel when the police
questioned him in connection with this case. “Under New York’s
indelible right to counsel rule, a defendant in custody in connection
with a criminal matter for which [the defendant] is represented by
                                 -3-                          1012
                                                         KA 09-01372

counsel may not be interrogated in the absence of his [or her]
attorney with respect to that matter or an unrelated matter unless
[the defendant] waives the right to counsel in the presence of his [or
her] attorney” (People v Lopez, 16 NY3d 375, 377). Here, defendant
was represented by counsel on an unrelated matter, but he was not in
custody for that unrelated matter at the time of the police
questioning in this case. Defendant did not have a derivative right
to counsel arising from that prior representation for which he was not
in custody (see People v Steward, 88 NY2d 496, 500-502, rearg denied
88 NY2d 1018; People v Scaccia, 6 AD3d 1105, 1105-1106, lv denied 3
NY3d 681).

     We agree with the contention of defendant in his pro se
supplemental brief, however, that the sentence is illegal in part.
The court directed that the sentences for the first three counts of
the indictment, charging robbery in the first degree, shall run
concurrently with each other but consecutively to the sentences for
counts 11 through 13 of the indictment, charging intentional and
felony murder in the second degree. We conclude that the sentences
for the robbery counts must run concurrently with count 12 of the
indictment, charging felony murder, because the robbery was the
underlying felony for that count of felony murder and thus constituted
a material element of that offense (see People v Faulkner, 36 AD3d
951, 953, lv denied 8 NY3d 922; People v Tucker, 33 AD3d 635, 636;
People v Smalls, 185 AD2d 863, 864, lv denied 81 NY2d 794). We
therefore modify the judgment accordingly. Contrary to defendant’s
further contention in his pro se supplemental brief, the sentence as
modified is not illegal and, contrary to defendant’s contention in his
main brief, the sentence is not unduly harsh or severe.

     We have considered the remaining contentions of defendant raised
in his main and his pro se supplemental briefs and conclude that they
are without merit.




Entered:   October 7, 2011                      Patricia L. Morgan
                                                Clerk of the Court
