People v. Marks

— Judgment unanimously affirmed. Memorandum: The trial court did not abuse its discretion in refusing to sever defendant’s trial from that of his codefendant. Defendant’s motion was untimely (CPL 255.20, 200.40 [1]) and his showing insufficient. Upon review of the record, we find that there was no impairment of substantial rights unseen before trial (see, People v Fisher, 249 NY 419, 427). The alleged errors in jury instructions were not preserved and we do not find that defendant was deprived of a fair trial (see, CPL 470.15 [6] [a]; People v Robinson, 36 NY2d 224, 228, rearg denied 37 NY2d 786; People v Fragale, 60 AD2d 972). There was sufficient evidence from which the jury could find that defendant, with intent to kill, shot the victim at least once, causing a wound which contributed to his death (see, People v Cicchetti, 44 NY2d 803, 804-805). Defendant’s sentence was not harsh and excessive. (Appeal from judgment of Supreme Court, Erie County, Stiller, J. — murder, second degree.) Present — Callahan, J. P., Denman, O’Donnell, Pine and Schnepp, JJ.