Appeal from a judgment of the Supreme Court, Erie County (Ronald H. Tills, A.J.), rendered August 20, 2004. The judgment convicted defendant, upon a jury verdict, of murder in the second degree (three counts), robbery in the first degree, attempted robbery in the first degree and criminal possession of a weapon in the second degree.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
PRESENT: HURLBUTT, J.P., CENTRA, PERADOTTO, GREEN, AND GORSKI, JJ.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, three counts of murder in the second degree (Penal Law § 125.25 , ) and one count of robbery in the first degree (§ 160.15 ). Contrary to the contention of defendant, Supreme Court properly refused to sever count seven of the indictment, charging defendant with criminal solicitation in the second degree (Penal Law § 100.10). That count was properly joined pursuant to CPL 200.20 (2) (b) because evidence that defendant sought assistance in finding and killing the murder victim, who was a witness to the other offenses charged, was material and admissible as evidence-in-chief in establishing defendant's consciousness of guilt with respect to those other offenses (see People v Bongarzone, 69 NY2d 892, 895). "[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; see People v Lee, 56 AD3d 1192, 1193, lv denied 11 NY3d 926).
Defendant failed to preserve for our review his contention that the court erred in its instruction to the jury after dismissing count seven of the indictment (see CPL 470.05 ). In addition, he failed to object to the court's Sandoval ruling on the grounds now raised on appeal and thus failed to preserve his contention with respect to the court's Sandoval ruling for our review (see id.). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15  [a]). Finally, 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).
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