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

177
KA 11-01538
PRESENT: WHALEN, P.J., CENTRA, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RICHARD MCGUIRE, DEFENDANT-APPELLANT.


MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Frank P.
Geraci, Jr., J.), rendered June 8, 2011. The judgment convicted
defendant, upon a jury verdict, of criminal possession of a weapon in
the second degree and criminal possession of a weapon in the third
degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law and a new trial is granted on counts
two and four of the indictment.

     Memorandum: Defendant appeals from a judgment convicting him,
upon a jury verdict, of criminal possession of a weapon in the second
degree (Penal Law § 265.03 [3]) and criminal possession of a weapon in
the third degree (§ 265.02 [1]). We conclude that, when viewed in
light of the elements of the crimes as charged to the jury (see People
v Danielson, 9 NY3d 342, 349), the verdict is not against the weight
of the evidence (see generally People v Bleakley, 69 NY2d 490, 495;
People v Carrasquillo, 142 AD3d 1359, 1360).

     As the People concede, however, County Court erred in refusing to
sever defendant’s trial from that of his codefendants (see CPL 200.40
[1]). We note at the outset that, “[w]hile a trial court must decide
a severance motion ‘prospectively, based on its discretionary
assessments of the strategies and evidence as forecast by the
parties,’ appellate courts have the benefit of a ‘full trial record by
which they may, within the ambit of their . . . review powers,
determine the existence of irreconcilable conflict and its possible
effect on the verdict’ ” (People v Cardwell, 78 NY2d 996, 998, quoting
People v Mahboubian, 74 NY2d 174, 184-185).

     Defendant and his two codefendants were jointly charged with
various offenses arising from the seizure by the police of a handgun
                                 -2-                           177
                                                         KA 11-01538

from the vehicle in which defendant and his codefendants were riding.
In support of his motion for severance, defendant contended that his
counsel had consulted with counsel for his codefendants and determined
that their respective trial strategies were irreconcilable because the
codefendants had made statements implicating one another in the
possession of the weapon. During the trial, defendant did not take
the stand, and defense counsel attempted to establish that defendant
did not possess the handgun. The codefendants testified that they did
not know that defendant had a handgun but that, just as the police
were stopping the vehicle, defendant pulled a gun from his waistband
and tried to give it to one of the codefendants. When that
codefendant refused to take the gun, defendant tried to hide it
beneath or behind the other codefendant’s seat. Thus, both
codefendants denied possessing the gun and testified that it was in
defendant’s possession. Additionally, one of the codefendants
testified that, following the arrest, defendant offered him $10,000 to
take responsibility for the gun.

     We conclude that the codefendants’ respective attorneys “took an
aggressive adversarial stance against [defendant at trial], in effect
becoming a second [and a third] prosecutor” (Cardwell, 78 NY2d at 998;
see People v Nixon, 77 AD3d 1443, 1444). We further conclude that the
“ ‘essence or core of the defenses [were] in conflict, such that the
jury, in order to believe the core of one defense, . . . necessarily
[had to] disbelieve the core of the other’ ” (Mahboubian, 74 NY2d at
184; see Nixon, 77 AD3d at 1444). Thus, in retrospect (see Cardwell,
78 NY2d at 998), there was “a significant danger . . . that the
conflict alone would lead the jury to infer defendant’s guilt,” and
therefore severance was required (Mahboubian, 74 NY2d at 184; see
Cardwell, 78 NY2d at 998; Nixon, 77 AD3d at 1444). Consequently, we
reverse the judgment and grant a new trial on counts two and four of
the indictment. Inasmuch as both codefendants were acquitted at
trial, defendant’s severance motion itself is now moot (see Nixon, 77
AD3d at 1444).

     In view of our determination, we do not consider defendant’s
remaining contentions.




Entered:   March 24, 2017                       Frances E. Cafarell
                                                Clerk of the Court
