           SUPREME COURT OF THE STATE OF NEW YORK
            Appellate Division, Fourth Judicial Department
263
KA 05-00837
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

EARL J. REED, DEFENDANT-APPELLANT.


KRISTIN F. SPLAIN, CONFLICT DEFENDER, ROCHESTER (KIMBERLY J.
CZAPRANSKI OF COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (LESLIE E. SWIFT OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Dennis M.
Kehoe, A.J.), rendered March 17, 2005. The judgment convicted
defendant, upon a jury verdict, of criminal possession of a weapon in
the third degree.

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

     Memorandum: On appeal from a judgment convicting him, following
a jury trial, of criminal possession of a weapon in the third degree
(Penal Law § 265.02 [former (4)]), defendant contends that County
Court erred in denying his motion to sever his trial from that of his
codefendant. We reject that contention for the same reasons as those
set forth in our decision in People v Wilburn (50 AD3d 1617, 1618, lv
denied 11 NY3d 742), the appeal by defendant’s codefendant. We reject
defendant’s further contention that the court erred in denying his
request for an adverse inference charge with respect to the People’s
failure to present certain items of physical evidence. Those items
were not obtained by the police, “and there [was] no indication that
the People . . . had those items ‘within their possession and
control’ ” (People v Tutt, 305 AD2d 987, lv denied 100 NY2d 588).
Finally, we reject defendant’s contention that he was deprived of
effective assistance of counsel (see generally People v Baldi, 54 NY2d
137, 147).




Entered:   March 25, 2011                          Patricia L. Morgan
                                                   Clerk of the Court
