People v Kelly

2006 NYSlipOp 07572

October 19, 2006

Appellate Division, First Department

As corrected through Wednesday, December 13, 2006

The People of the State of New York, Respondent, v Patrick Kelly, Appellant.

—[*1]

Judgment, Supreme Court, New York County (Rena K. Uviller, J., on consolidation motion; John Cataldo, J., at speedy trial motion, jury trial and sentence), rendered October 21, 2005, convicting defendant of grand larceny in the second and third degrees, criminal possession of stolen property in the second and third degrees, and falsifying business records in the first degree, and sentencing him, as a second felony offender, to an aggregate term of 4 to 8 years, unanimously affirmed.

The two indictments were properly consolidated pursuant to CPL 200.20 (2) (b). Defendant used the same method to steal from successive employers, and evidence of his actions relating to one indictment was material and admissible in the trial of the other since it demonstrated larcenous intent (see People v Schwartzman, 24 NY2d 241, 248-249 [1969], cert denied 396 US 846 [1969]; People v Molineux, 168 NY 264, 293 [1901]; People v Radoncic, 259 AD2d 428 [1999], lv denied 93 NY2d 1005 [1999]). The indictments were also properly joined as legally similar pursuant to CPL 200.20 (2) (c), and joinder was not unduly prejudicial (see People v Streitferdt, 169 AD2d 171, 176 [1991], lv denied 78 NY2d 1015 [1991]).

The court properly denied defendant's motion to dismiss the indictments pursuant to CPL 30.30. The sole period at issue on the motion was the 43-day period during which the People's motion to consolidate the indictments was pending, and that period was plainly excludable under CPL 30.30 (4) irrespective of the People's readiness (see People v Reed, 19 AD3d 312, 315 [2005], lv denied 5 NY3d 832 [2005]; People v Osorio, 297 AD2d 231, 232-233 [2002]). To the extent that defendant is also claiming that certain periods during which the People had declared [*2]their readiness should nevertheless be deemed includable, such claim is unpreserved and unreviewable for lack of a proper record. Concur—Buckley, P.J., Tom, Marlow, Nardelli and Williams, JJ.