| People v Bankston |
| 2009 NY Slip Op 04571 [63 AD3d 1616] |
| June 5, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v MarioBankston, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Raymond C. Herman of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Sheila A. DiTullio, J.), rendered January16, 2008. The judgment convicted defendant, upon a jury verdict, of robbery in the first degreeand robbery in the second degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, ofone count of robbery in the first degree (Penal Law § 160.15 [4]) and two counts ofrobbery in the second degree (§ 160.10 [1], [2] [b]). Contrary to the contention ofdefendant, the record of the suppression hearing supports County Court's determination that thepolice had probable cause to arrest him (see People v Brito, 59 AD3d 1000 [2009]; see generally Peoplev Prochilo, 41 NY2d 759, 761 [1977]). Defendant failed to preserve for our review hiscontentions that the court limited his right to present a defense (see generally People vAngelo, 88 NY2d 217, 222 [1996]; People v Roman, 60 AD3d 1416 [2009]), and that he was denied afair trial by prosecutorial misconduct during summation (see People v Romero, 7 NY3d 911 [2006]; People v Smith, 32 AD3d 1291,1292 [2006], lv denied 8 NY3d 849 [2007]). We decline to exercise our power to reviewthose contentions as a matter of discretion in the interest of justice (see CPL 470.15 [6][a]).
Contrary to defendant's further contention, the court did not abuse its discretion inconsolidating the indictments. "[T]he decision to consolidate separate indictments under CPL200.20 (subd 4) is committed to the sound discretion of the Trial Judge in light of thecircumstances of the individual case, and the decision is reviewable on appeal . . .only to the extent that there has been an abuse of that discretion as a matter of law" (People vLane, 56 NY2d 1, 8 [1982]; see CPL 200.20 [5]; People v Brown, 254 AD2d781, 782 [1998], lv denied 92 NY2d 1029 [1998]). Here, the offenses in the indictmentswere joinable under CPL 200.20 (2) (c), and defendant failed to make the requisite showing ofgood cause why the indictments should be tried separately, pursuant to CPL 200.20 (3).Defendant did not "establish that there was substantially more proof against him on one set ofcharges and that it was likely that the jury would be unable to consider separately the proof as itrelated to each offense" (People v Rogers, 245 AD2d 1041, 1041 [1997]; seeCPL 200.20 [3] [a]), nor did he establish "that he had 'both important testimony to giveconcerning one [offense] and a genuine need to refrain from testifying on the other' "(Rogers, 245 AD2d at 1041, quoting CPL 200.20 [3] [b]; see Lane, 56 NY2d at5).[*2]
Further, viewing the evidence in light of the elements ofthe crime as charged to the jury (seePeople v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict with respectto robbery in the first degree is not against the weight of the evidence (see generally People vBleakley, 69 NY2d 490, 495 [1987]). The testimony of the prosecution witnesses was not "'so unworthy of belief as to be incredible as a matter of law' " (People v Woods, 26 AD3d 818,819 [2006], lv denied 7 NY3d 765 [2006]), and we see no reason to disturb the jury'sresolution of credibility issues (see generally Bleakley, 69 NY2d at 495). Finally, wereject defendant's contentions that the indictment was defective (see People ex rel. Shaffer vKuhlmann, 173 AD2d 1034, 1035 [1991], lv denied 78 NY2d 856 [1991]; seegenerally People v McMillan, 231 AD2d 841 [1996], lv denied 89 NY2d 987[1997], cert denied 522 US 830 [1997]), and that the sentence is unduly harsh or severe.Present—Scudder, P.J., Fahey, Peradotto, Carni and Green, JJ.