PEOPLE v. SMITH (2009)

Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Dibella, J.), rendered December 8, 2006, convicting him of robbery in the first degree (three counts), robbery in the second degree (three counts), and assault in the second degree (four counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.   Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

Contrary to the defendant's contention, the Supreme Court's Sandoval ruling (see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413) was a provident exercise of its discretion (see People v. Walker, 83 N.Y.2d 455, 611 N.Y.S.2d 118, 633 N.E.2d 472;  People v. Williams, 213 A.D.2d 689, 624 N.Y.S.2d 216).

The defendant's contention that the prosecutor's summation remarks constituted reversible error because the prosecutor allegedly shifted the burden of proof is unpreserved for appellate review (see CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   In any event, the prosecutor's remarks were fair comment on the evidence (see People v. Ashwal, 39 N.Y.2d 105, 383 N.Y.S.2d 204, 347 N.E.2d 564).

The defendant's contention that the court did not adequately respond to a jury note requesting clarification is unpreserved for appellate review and, in any event, is without merit (see CPL 470.05[2];  People v. Starling, 85 N.Y.2d 509, 626 N.Y.S.2d 729, 650 N.E.2d 387;  People v. Romgobind, 40 A.D.3d 1133, 837 N.Y.S.2d 274).   The court meaningfully responded by rereading its original instructions to the jury (see People v. Malloy, 55 N.Y.2d 296, 449 N.Y.S.2d 168, 434 N.E.2d 237;  People v. Leon, 48 A.D.3d 701, 852 N.Y.S.2d 331;  People v. Crosby, 33 A.D.3d 719, 821 N.Y.S.2d 908).

The Supreme Court providently exercised its discretion in denying the defendant's motion to sever the charges in the indictment pertaining to each incident, since the charges involved the same or similar law (see CPL 200.20 [3] ), and there is nothing in the record indicating that the jury was unable to separately consider the discrete charges (see People v. Montalvo, 34 A.D.3d 600, 825 N.Y.S.2d 101;  People v. Nickel, 14 A.D.3d 869, 788 N.Y.S.2d 274;  People v. Berta, 213 A.D.2d 659, 624 N.Y.S.2d 211;  People v. Prezioso, 199 A.D.2d 343, 604 N.Y.S.2d 256).