| People v Johnson |
| 2007 NY Slip Op 10067 [46 AD3d 415] |
| December 20, 2007 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v ToddJohnson, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Rena Paul of counsel), forrespondent.
Judgment, Supreme Court, New York County (Renee A. White, J.), rendered April 11, 2006,convicting defendant, after a jury trial, of robbery in the second degree, and sentencing him, as asecond felony offender, to a term of nine years, unanimously affirmed.
At about 10:45 p.m., a citizen informant driving a van approached Officer Gallagher and hisfellow officers, all of whom were in a parked and unmarked vehicle, and pointed to defendantand his two companions, all three of whom had walked past the vehicle a "couple of seconds"before the informant approached the officers. The informant told them that the three men had"just robbed someone down the block." Officer Gallagher asked the informant, "The three guyswho just walked by the car? Those three guys?" When the informant answered "yes," OfficerGallagher told him to remain where he was. The officers drove down the block, exited thevehicle, identified themselves as police officers, and told defendant and the other two men to "geton the ground." Although one of the men complied with the direction, defendant and the otherman fled. After a chase, defendant was apprehended and a search of his person uncovered,among other things, one $50 bill and three MetroCards.
The close and difficult question presented on this appeal is whether the more reasonableinference is that the informant spoke from personal knowledge when he reported that defendantand his companions had "just robbed someone down the block" (see e.g. People vRansdell, 254 AD2d 63 [1998], lv denied 92 NY2d 1037 [1998]). To be sure, theinformant's account lacked any detailed description of the alleged robbery from which it might beinferred that he had seen it (see People v Parris, 83 NY2d 342, 350 [1994]). Nonetheless,as between the only two possibilities—the informant saw the robbery occur momentsbefore or was told the robbery occurred moments before—the more reasonable conclusionunder all the circumstances, including that the informant stopped his vehicle to make his report toindividuals he believed to be police officers, is that the informant was reporting what he had justseen rather than what he had just been told. Accordingly, we find that the record providedsufficient basis to conclude that the informant's statement was based on personal knowledge andprovided the officers with probable cause to arrest defendant.
When deliberations began, the parties agreed in response to an inquiry by the court that [*2]the exhibits could be brought into the jury room if the juryrequested them. Although the record otherwise makes no mention of it, a note from the jury thatwas marked court exhibit 2 was sent about an hour after deliberations began requesting "allevidence pertaining to this case." Defendant claims for the first time on appeal that this note wasa "substantive" one that neither the court nor the parties ever saw and, in any event, that the courtfailed to comply with the procedures mandated by CPL 310.30 (see People v O'Rama, 78NY2d 270 [1991]) in assertingly doing nothing in response to the note.
We reject this claim as defendant failed to make a record in the trial court that is sufficient topermit appellate review (see People v Kinchen, 60 NY2d 772, 773-774 [1983]).Moreover, as we stated in rejecting for this reason a claim that the trial court had violated theprinciples of People v O'Rama in its response to a jury note, "[a] presumption ofregularity attaches to judicial proceedings and may be overcome only by substantial evidence"(People v Rodriguez, 11 AD3d350 [2004], lv denied 4 NY3d 802 [2005]). On the existing record, the morereasonable conclusion is that the jury's request for the "evidence" was in fact a ministerial requestfor the exhibits. It is unlikely that the jury would have immediately sought a readback of all thetestimony given that the court had just finished advising the jury that when requesting a readbackof testimony, it should "consider carefully what specific portions" of the testimony would behelpful "rather than asking for all of the testimony to be read back." It also is unlikely that thejury would have silently acquiesced in its request being ignored for no apparent reason. In fact,the jury's request for the "evidence" was never reiterated, and the jury subsequently requested alimited readback.
The motion to consolidate the two indictments was properly granted. To the extent thatdefendant claims that consolidation deprived him of his due process right to a fair trial, he did notraise this claim before Supreme Court and thus it is not preserved for our review (CPL 470.05[2]). Defendant was charged under indictment No. 6879/04 with two theories of robbery, that herobbed Phil Simmons while aided by another person (of which defendant was convicted), andthat he caused physical injury to Simmons during the robbery (of which defendant wasacquitted), and was charged under indictment No. 2716/05 with criminal possession of stolenproperty for possessing two MetroCards purchased with a credit card stolen from Raul Ruiz. Onthe particular facts of this case, the evidence that defendant possessed stolen MetroCards wasmaterial and admissible as evidence-in-chief in connection with the trial on the charges relatingto the robbery of Simmons, and evidence of that robbery was material and admissible asevidence-in-chief in connection with the trial on the stolen property charges. Accordingly, andbecause proof of each crime was easily segregable in the minds of the jurors, the trial court didnot improvidently exercise its discretion in ordering the consolidation of both indictmentspursuant to CPL 200.20 (2) (b) and 200.20 (4) (see People v Lane, 56 NY2d 1, 7-8[1982]; People v McCall, 13 AD3d197, 198 [2004], lv denied 4 NY3d 833 [2005]). That defendant was acquitted of thestolen possession charges is further indication that defendant suffered no prejudice "by theconsolidation and that the jury was able to segregate the evidence as it related to each charge" (People v McNeil, 39 AD3d 206,208 [2007]). Concur—Andrias, J.P., Saxe, Nardelli, McGuire and Malone, JJ.