People v. Read

— Judgment unanimously affirmed. Memorandum: Defendant was convicted of assault in the second degree and criminal possession of a weapon in the second degree; the jury was unable to reach a verdict with respect to an unrelated charge of murder in the second degree and the court, at defendant’s request, accepted a partial verdict. Defendant argues that the court erred in denying his pretrial motion to sever the murder count from the other two counts, arguing that proof of the assault would not be admissible on the murder charge. We disagree. Although no gun was recovered, the firearms examiner testified that the same gun was used in both incidents, several witnesses testified that defendant had been seen with a gun from which the bullet casings could have come, and the individuals involved were members of the same drug ring. Under these circumstances, we find that proof of the assault was probative on the contested issue of identity of the perpetrator of the murder (see, People v Luke, 155 AD2d 890, lv denied 75 NY2d 870).

We do not find defendant’s sentence to be harsh and excessive. Defendant’s two remaining contentions on appeal are unpreserved for our review and we decline to reach them in the interest of justice. (Appeal from Judgment of Monroe County Court, Connell, J. — Assault, 2nd Degree.) Present— Dillon, P. J., Boomer, Pine, Balio and Davis, JJ.