People v. Reed

Memorandum: On appeal from a judgment convicting him, following a jury trial, of criminal possession of a weapon in the third degree (Penal Law § 265.02 [former (4)]), defendant contends that County Court erred in denying his motion to sever his trial from that of his codefendant. We reject that contention for the same reasons as those set forth in our decision in People v Wilburn (50 AD3d 1617, 1618 [2008], lv denied 11 NY3d 742 [2008]), the appeal by defendant’s codefendant. We reject defendant’s further contention that the court erred in denying his request for an adverse inference charge with respect to the People’s failure to present certain items of physical *1633evidence. Those items were not obtained by the police, “and there [was] no indication that the People . . . had those items ‘within their possession and control’ ” (People v Tutt, 305 AD2d 987, 987 [2003], lv denied 100 NY2d 588 [2003]). Finally, we reject defendant’s contention that he was deprived of effective assistance of counsel (see generally People v Baldi, 54 NY2d 137, 147 [1981]). Present — Smith, J.P, Peradotto, Lindley, Sconiers and Martoche, JJ.