Opinion
December 20, 1994
Appeal from the Supreme Court, New York County (Felice Shea, J.).
Viewing the evidence in a light most favorable to the People, and giving due deference to the jury's findings of credibility, defendant was convicted by overwhelming evidence, and the verdict was not against the weight of that evidence (People v Bleakley, 69 N.Y.2d 490, 494-495). All of defendant's other claims are unpreserved as a matter of law and in any event do not warrant corrective action. Concerning severance (People v McGee, 68 N.Y.2d 328, 333-334), defendant has not demonstrated that the core of each defendant's defense was in irreconcilable conflict (People v Mahboubian, 74 N.Y.2d 174, 184). Concerning the evidence that defendant was a local drug dealer, such was relevant to establish defendant's motive for the killing (People v Williams, 193 A.D.2d 408, lv denied 82 N.Y.2d 729; People v Cascoigne, 189 A.D.2d 714, lv denied 81 N.Y.2d 1012; People v Powell, 157 A.D.2d 524, lv denied 75 N.Y.2d 923), to rebut defendant's theory that he was not the initial aggressor (People v DeFairia, 186 A.D.2d 366, lv denied 81 N.Y.2d 761), and to establish identity, at least to the extent that eyewitnesses recognized that defendant, rather than a coperpetrator, had delivered the fatal blow, and much of the claimed hearsay (People v Medina, 53 N.Y.2d 951), served to explain why defendant was arrested (People v Perez, 203 A.D.2d 123, lv denied 83 N.Y.2d 970).
By failing to seek redress pursuant to CPL 440.10, defendant has failed to present a record adequate to permit review of his claim of incompetent trial representation (People v Brown, 45 N.Y.2d 852, 853-854; People v Dowdy, 196 A.D.2d 747, lv denied 82 N.Y.2d 849), and, on the present record, no basis exists to find that the presumption of competent representation has been overcome (People v Kirkland, 192 A.D.2d 414, lv denied 81 N.Y.2d 1075).
Concur — Ellerin, J.P., Ross, Rubin, Nardelli and Williams, JJ.