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The PEOPLE of the State of New York, Respondent, v. Steven D. MAJOR, Defendant-Appellant.
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[1], [3] ) and one count of robbery in the first degree (§ 160.15[2] ). 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 N.Y.2d 892, 895, 515 N.Y.S.2d 227, 507 N.E.2d 1083). “[O]nce the offenses were properly joined, the court lacked the statutory authority to sever” (People v. Cornell, 17 A.D.3d 1010, 1011, 794 N.Y.S.2d 226, lv. denied 5 N.Y.3d 805, 803 N.Y.S.2d 34, 836 N.E.2d 1157; see People v. Lee, 56 A.D.3d 1192, 1193, 867 N.Y.S.2d 321, lv. denied 11 N.Y.3d 926, 874 N.Y.S.2d 12, 902 N.E.2d 446). 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[2] ). 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[6][a] ). Finally, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
MEMORANDUM:
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Decided: April 24, 2009
Court: Supreme Court, Appellate Division, Fourth Department, New York.
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