People v. Mateo

11 A.D.3d 984, 782 N.Y.S.2d 233, 2004 N.Y. App. Div. LEXIS 11359

Opinion

Appeal from a judgment of the Monroe County Court (John J. Connell, J.), rendered November 8, 1999. The judgment convicted defendant, upon a jury verdict, of murder in the second degree (five counts).

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him following a jury trial of five counts of murder in the second degree (Penal Law § 125.25 [1], [3]). Contrary to the contention of defendant, County Court did not abuse its discretion in denying his severance motion. “[Defendant failed to meet his burden of establishing that he would be ‘unduly and genuinely prejudiced by the joint trial of the [unrelated murder] charges’ ” (People v Lovett, 303 AD2d 952, 952 [2003], lv denied 100 NY2d 584 [2003], quoting People v Brown, 254 AD2d 781, 782 [1998], lv denied 92 NY2d 1029 [1998]). Defendant failed to preserve for our review his further contention that the court’s instructions concerning the separate counts were inadequate (see CPL 470.05 [2]) and, in any event, that contention lacks merit (see generally People v Canty, 60 NY2d 830, 831-832 [1983]). Even assuming, arguendo, that the challenge by defendant to the voluntariness of his confession was timely raised, we nevertheless conclude that it is without merit (see generally People v Mateo, 2 NY3d 383, 413-414 [2004], cert denied — US —, 124 S Ct 2929 [2004]). Finally, by challenging the voluntariness of the confession, defendant opened the door to the admission of the full confession (see id. at 416-417). Present—Pine, J.P., Scudder, Kehoe, Martoche and Lawton, JJ.