People v. Brodie

• Decision Date: 11 February 1991
• Citation: 170 A.D.2d 518,566 N.Y.S.2d 330
• Parties: The PEOPLE, etc., Respondent, v. Arthur BRODIE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 330

566 N.Y.S.2d 330

170 A.D.2d 518

The PEOPLE, etc., Respondent, v. Arthur BRODIE, Appellant.

Supreme Court, Appellate Division, Second Department.

Feb. 11, 1991.

Warren S. Hecht, Forest Hills, for appellant.

Charles J. Hynes, Dist. Atty., Brooklyn (Jay Cohen, Tammy J. Smiley and Amy Appelbaum, of counsel), for respondent.

Before BRACKEN, J.P., and KUNZEMAN, EIBER and O'BRIEN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Aiello, J.), rendered December 15, 1987, convicting him of murder in the second degree, criminal possession of a weapon in the second degree (two counts) and criminal possession of a weapon in the third degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

We find that the defendant failed to preserve the issue of the court's denial of his pretrial motion for a severance pursuant to CPL 200.40 based on an incriminating statement of the codefendant Michael Sennon. At the trial, the defendant requested severance solely on the basis of an incriminating statement made by the codefendant Shannon Kelly. There was no request for severance on the basis of the codefendant Sennon's statement (see, People v. sennon, 170 A.D.2d 546, 566 N.Y.S.2d 327 [decided herewith]; People v. Kelly, 170 A.D.2d 537, 566 N.Y.S.2d 326 [decided herewith]. Even though such a motion was made by the codefendant Robert Brodie, this defendant failed to preserve the claim for appellate review on his own behalf (see, CPL 470.05[2]. In any event, the contention is without merit (see, People v. Lowen, 100 A.D.2d 518, 519, 473 N.Y.S.2d 22; see also, People v. Brodie, 170 A.D.2d 519, 566 N.Y.S.2d 328 [decided herewith].

The defendant's claim that the defense of the codefendant Robert Brodie was antagonistic to his defense was similarly unpreserved for appellate review. This contention is also without merit (see, CPL 200.40; People v. Mahboubian, 74 N.Y.2d 174, 183-185, 544 N.Y.S.2d 769, 543 N.E.2d 34; People v. Brodie, supra, 170 A.D.2d 519, 566 N.Y.S.2d 328 [decided herewith].

We have examined the defendant's remaining contentions and find them to be without merit.