People v. Fernandez

• Decision Date: 16 June 1986
• Parties: The PEOPLE, etc., Respondent, v. Bienbenito FERNANDEZ, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 612

503 N.Y.S.2d 612

121 A.D.2d 562

The PEOPLE, etc., Respondent, v. Bienbenito FERNANDEZ, Appellant.

Supreme Court, Appellate Division,

Second Department.

June 16, 1986.

Philip L. Weinstein, New York City (Robin Nichinsky, of counsel), for appellant.

John J. Santucci, Dist. Atty., Kew Gardens (Deborah Carlin Stevens, of counsel), for respondent.

Before WEINSTEIN, J.P., and NIEHOFF, KUNZEMAN and SPATT, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Naro, J.), rendered May 21, 1982, convicting him of murder in the second degree, attempted robbery in the first degree, and criminal use of a firearm in the second degree, upon a jury verdict, and imposing sentence.

Judgment affirmed.

The defendant's contention that the refusal of the trial court to grant his motion for severance resulted in the denial of his right to confrontation and a fair trial, pursuant to the rule of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, is without merit, since the codefendant's statement interlocked with the defendant's confession, and the jury was given appropriate limiting instructions (see, People v. Cruz, 66 N.Y.2d 61, 495 N.Y.S.2d 14, 485 N.E.2d 221).

We decline to disturb the sentence imposed upon the defendant, as it was within the bounds of both the applicable sentencing statute and the court's sound discretion and we perceive no reason to substitute our discretion for that of the sentencing court (see, People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).