         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1068
KA 09-01028
PRESENT: SCUDDER, P.J., SMITH, CENTRA, GREEN, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                                MEMORANDUM AND ORDER

STEFFEN A. JONES, DEFENDANT-APPELLANT.


BRUCE R. BRYAN, SYRACUSE, 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 (Joseph E.
Fahey, J.), rendered April 25, 2008. The judgment convicted
defendant, upon a jury verdict, of murder in the second degree,
criminal possession of a weapon in the second degree and conspiracy in
the second degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of murder in the second degree (Penal Law § 125.25
[1]), criminal possession of a weapon in the second degree (§ 265.03
[former (1) (b)]) and conspiracy in the second degree (§ 105.15). We
reject defendant’s contention that County Court erred in refusing to
sever the counts of the indictment relating to the murder of one
victim from the counts relating to the murder of the second victim and
from those related to the attempted murder of the third victim. The
counts related to the murders were properly joined inasmuch as both
murders were allegedly perpetrated as the result of a dispute between
one group of men that included defendant and another group that
included the victims, and proof of the offenses related to one murder
was material and admissible as evidence-in-chief upon a trial of the
offenses related to the other murder (see CPL 200.20 [2] [b]; People v
Major, 61 AD3d 1417, lv denied 12 NY3d 927). Further, proof of the
offenses related to both murders was material and admissible as
evidence-in-chief upon a trial of the offenses relating to the
attempted murder of the third victim, who gave a statement to the
police implicating defendant in both murders (see People v Kelley, 46
AD3d 1329, 1331-1332, lv denied 10 NY3d 813). “[O]nce the offenses
were properly joined, the court lacked the statutory authority to
sever” (People v Cornell, 17 AD3d 1010, 1011, lv denied 5 NY3d 805).

     Defendant contends that the evidence is legally insufficient to
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                                                         KA 09-01028

support the conviction because the principal witnesses against him
lacked credibility. We reject that contention (see generally People v
Smith, 272 AD2d 713, 715-716, lv denied 95 NY2d 871). Defendant
failed to preserve for our review his further challenges to the legal
sufficiency of the evidence (see People v Gray, 86 NY2d 10, 19; People
v Cole, 35 AD3d 911, 912, lv denied 8 NY3d 944). In addition, we
reject defendant’s contention that he was deprived of a fair trial
based upon misconduct by the prosecutor during his opening statement.
Defendant preserved that contention for our review with respect to
only one alleged instance of prosecutorial misconduct and, in any
event, we conclude that each instance of the prosecutor’s alleged
misconduct during his opening statement identified by defendant was
not so egregious or improper as to deny defendant a fair trial (see
generally People v Walker, 50 AD3d 1452, 1453, lv denied 11 NY3d 795,
931).

     The sentence is not unduly harsh or severe. We note, however,
that the certificate of conviction incorrectly reflects that defendant
was sentenced to an indeterminate term of incarceration of 12 to 25
years for the conviction of conspiracy in the second degree, and it
must therefore be amended to reflect that he was sentenced to an
indeterminate term of incarceration of 12½ to 25 years for that
conviction (see generally People v Barnes, 56 AD3d 1171).




Entered:   November 10, 2011                    Patricia L. Morgan
                                                Clerk of the Court
