Summary
This Appellate Division, Fourth Department opinion affirms the defendant's conviction for criminal possession of a weapon in the second degree. The court rejected the defendant's arguments regarding the denial of a motion to sever counts, ineffective assistance of counsel concerning an evidentiary objection, and waiver of an adjournment request after consenting to a new trial date. The court concluded that the evidence supported joinder of the offenses and that the sentence was not unduly harsh or severe.
Topics
Practice areas
Questions Presented
- Whether the trial court erred in refusing to sever the count arising from the April 4 incident from the counts arising from the April 18 incident.
- Whether the defendant received ineffective assistance of counsel for counsel’s failure to object to the surveillance‑footage testimony.
- Whether the trial court abused its discretion in denying the defendant’s request for an adjournment.
- Whether the defendant’s sentence is unduly harsh or severe.
Holdings
- The trial court did not err; the offenses were joinable because proof of one was material and admissible at the trial of the other.
- The defendant did not demonstrate ineffective assistance because he failed to show a legitimate explanation was absent for counsel’s failure to object.
- The trial court did not abuse discretion; the defendant waived the issue by consenting to a new trial date.
- The sentence is not unduly harsh or severe.
Key quotations
“'To effect a severance[, defendant] must either demonstrate that the counts were not joinable under the statutory criteria . . . or seek a discretionary severance' . . . Offenses are joinable if, inter alia, proof of either offense would be material and admissible as evidence-in-chief at the trial of the other offense.” (at 1)
Factual background
Bryon K. Johnson was found in possession of a weapon at a tavern on April 4, 2015 and was later linked by cartridge casings to a shooting on April 18, 2015. The same firearm was used in both incidents, and the prosecution presented surveillance footage identifying Johnson as the possessor of the weapon.
Procedural history
The trial court convicted the defendant of second‑degree criminal possession of a weapon based on an April 4, 2015 tavern incident and acquitted him of separate shooting charges arising from an April 18, 2015 incident. The conviction was entered after a jury verdict.