| People v Bowen |
| 2009 NY Slip Op 02044 [60 AD3d 1319] |
| March 20, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v DonaldBowen, Appellant. |
—[*1] Edward M. Sharkey, District Attorney, Little Valley (John C. Luzier of counsel), forrespondent.
Appeal from a judgment of the Cattaraugus County Court (Larry M. Himelein, J.), renderedSeptember 4, 2007. The judgment convicted defendant, upon a jury verdict, of burglary in thethird degree (two counts), grand larceny in the fourth degree, and petit larceny.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby reversing that part convicting defendant of grand larceny in the fourth degree and dismissingcount four of the indictment and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofgrand larceny in the fourth degree (Penal Law § 155.30 [1]) as a lesser included offense ofgrand larceny in the third degree (§ 155.35), petit larceny (§ 155.25), and twocounts of burglary in the third degree (§ 140.20). We reject the contention of defendantthat he was denied a fair trial by prosecutorial misconduct. The record establishes that CountyCourt issued prompt curative instructions that were sufficient to alleviate any prejudice todefendant arising from any misconduct (see People v Murry, 24 AD3d 1319, 1320 [2005], lvdenied 6 NY3d 815 [2006]). Contrary to defendant's further contention, the testimony of thewitnesses did not render the indictment duplicitous inasmuch as that testimony did not "tend[ ] toestablish the commission of multiple criminal acts during [the time periods] specified in theindictment" (People v Bracewell,34 AD3d 1197, 1198 [2006]).
We agree with defendant, however, that the court should have granted his request pursuant toCPL 30.30 seeking to dismiss the count of the indictment charging him with grand larceny in thethird degree, and we therefore modify the judgment accordingly. For purposes of the statutoryright to a speedy trial, the six-month readiness period begins to run when an action in whichdefendant is accused of "one or more offenses, at least one of which is a felony," is commenced(CPL 30.30 [1] [a]). Here, the action was commenced by the filing of a felony complaintapproximately eight months prior to the indictment. The felony complaint charged defendantwith one count of burglary in the third degree but did not charge him with grand larceny in thethird degree. Although the count charging defendant with burglary in the third degree wasdismissed based on the People's noncompliance with CPL 30.30, we conclude that the crimescharged in both the felony complaint and the indictment "were based upon . . . acts'so [*2]closely related and connected in point of time andcircumstance of commission as to constitute a single criminal incident' " (People v Stone,265 AD2d 891, 892 [1999], lv denied 94 NY2d 907 [2000]). Thus, defendant also wasentitled to dismissal of the count charging him with grand larceny in the third degree. We rejectdefendant's contention, however, that the dismissal of that count warrants a new trial on theremaining counts of which defendant was convicted. The evidence against defendant withrespect to those remaining counts is overwhelming, and there is no significant probability thatthe jury would have acquitted defendant of those counts in the absence of the evidence presentedconcerning the grand larceny count (see generally People v Crimmins, 36 NY2d 230,241-242 [1975]).
Finally, the sentence is not unduly harsh or severe. Present—Scudder, P.J., Hurlbutt,Peradotto and Gorski, JJ.