SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
October 2, 2009
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
PRINCE R. CLARK, JR., DEFENDANT-APPELLANT.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.), rendered February 22, 2006. The judgment convicted defendant, upon a jury verdict, of criminal possession of a controlled substance in the third degree (two counts), criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree (two counts) and criminally using drug paraphernalia in the second degree (two counts).
PRESENT: SMITH, J.P., FAHEY, CARNI, PINE, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Defendant appeals from a judgment convicting him upon a jury trial of, inter alia, two counts each of criminal possession of a controlled substance in the third degree (Penal Law § 220.16 , ) and criminally using drug paraphernalia in the second degree (§ 220.50 , ). We reject the contention of defendant that County Court abused its discretion in denying his motion to sever his trial from that of his co-defendant. "The 'core of each defense [was not] in irreconcilable conflict with the other and... there [was no] significant danger, as both defenses [were] portrayed to the trial court, that the conflict alone would lead the jury to infer defendant's guilt' " (People v Bolling, 49 AD3d 1330, 1332, quoting People v Mahboubian, 74 NY2d 174, 184; see People v Cardwell, 78 NY2d 996, 997-998). Although at least one comment made by the co-defendant's attorney on summation was unfavorable to defendant, that single display of hostility did not warrant severance (see People v Watkins, 10 AD3d 665, 665-666, lv denied 3 NY3d 761). Also contrary to the contention of defendant, he did not establish his entitlement to severance on the ground that he would have been subjected to prejudicial cross-examination by the attorney for his co-defendant had defendant testified (see generally People v McGee, 68 NY2d 328, 333). "At no stage of the proceedings [did] defendant establish[ ] that his potential testimony would have given the co-defendant an incentive to impeach his credibility" (People v Frazier, 309 AD2d 534, 534, lv denied 1 NY3d 571).
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