THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. EARL REED DEFENDANT APPELLANT (2011)

MEMORANDUM AND ORDER

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 A.D.2d 987, lv denied 100 N.Y.2d 588).   Finally, we reject defendant's contention that he was deprived of effective assistance of counsel (see generally People v. Baldi, 54 N.Y.2d 137, 147).

Patricia L. Morgan

Clerk of the Court