By: Daily Record Staff//October 18, 2011
By: Daily Record Staff//October 18, 2011//
Appellate Division, Fourth Department
Murder and Robbery
People v. Osborne
Appealed from Niagara County Court
Background: Convicted after trial of three counts of both murder and robbery, the defendant raised several issues on appeal. The defendant argued that severance should have been granted because on summation, co-counsel argued that DNA and fingerprint evidence implicated the defendant but not the co-defendant.
The defendant also challenged the robbery sentences, which ran consecutive to the counts charging murder.
Ruling: Judgment is modified. While the defendant had moved for severance, he did not do so on the grounds raised on appeal.
Modification was granted with sentencing. Because robbery was the underlying felony for felony-murder and was thus a material element of that offense, the three robbery sentences must run concurrently with felony-murder.
Kathleen E. Casey for the defendant, defendant pro se; and Theresa L. Preszioso for Niagara County District Attorney’s Office