| People v Grady |
| 2009 NY Slip Op 08503 [67 AD3d 563] |
| November 19, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Morris Grady, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Britta Gilmore of counsel), forrespondent.
Judgment, Supreme Court, New York County (Micki Scherer, J., at severance motion;William A. Wetzel, J., at jury trial and sentence), rendered April 24, 2007, as amended May 29,2007, convicting defendant of attempted murder in the second degree (two counts), assault in thefirst and second degrees, robbery in the first degree (two counts), attempted robbery in the firstdegree (two counts) and robbery in the second degree, and sentencing him, as a second felonyoffender, to an aggregate term of 45 years, unanimously affirmed.
The court properly exercised its discretion in denying defendant's severance motion. In thefirst place, the court correctly determined that the motion was untimely, and we rejectdefendant's arguments to the contrary. The court also correctly determined that defendant did notestablish good cause for a severance under CPL 200.20 (3). Defendant was charged in a singleindictment with crimes arising out of robberies of a laundromat and a garage, each involving anattempt to kill a victim. As in People vFord (11 NY3d 875, 879 [2008]), "there was no material variance in the quantity ofproof for the separate incidents. Moreover, the evidence as to the two crimes was presentedseparately and was readily capable of being segregated in the minds of the jury." Althoughdefendant argues that the proof of his identity as to the garage robbery was much weaker than asto the laundromat robbery, we find that the proof was very strong in both cases. In particular,there was ample evidence connecting defendant to a car stolen in the garage robbery, and thecircumstances warranted the conclusion that he stole the car rather than merely possessed it.Furthermore, defendant did not substantiate his assertion that he had important testimony to giveconcerning the garage robbery and a strong need to refrain from testifying as to the laundromatrobbery (see People v Lane, 56 NY2d 1, 8-9 [1982]).
Likewise, we reject defendant's argument that the verdict convicting him of the crimesinvolved in the garage robbery was against the weight of the evidence (see People v Danielson, 9 NY3d342, 348-349 [2007]). Although the victims were unable to identify defendant, and hadidentified another man in a lineup, there was a surveillance tape of the crime, and the jury wasable to compare defendant's appearance with that of the person depicted on the tape. Thisevidence, taken together with the evidence discussed above relating to the stolen car, clearlyestablished defendant's guilt (see Peoplev Solomon, 6 AD3d 335 [2004], lv denied 3 NY3d 648[*2][2004]).
The court properly exercised its discretion in denying defendant's mistrial motion, made inconnection with the court's suppression of evidence that had already been placed before the jury.After a detective testified that the registration for the car taken in the garage robbery was indefendant's wallet, and the wallet was received in evidence, defendant raised a FourthAmendment issue, asserting that it was based on information not available to him prior to trial.After ruling that defendant was entitled to suppression, the court properly rejected the drasticremedy of a mistrial (see People v Santiago, 52 NY2d 865 [1981]), and instead struckthe evidence, with a thorough curative instruction that was satisfactory to defendant and whichthe jury is presumed to have followed (see People v Davis, 58 NY2d 1102, 1104 [1983]).In any event, any error was harmless because the stricken evidence was duplicative of otherevidence. The police found the car's insurance and leasing documents under a chair cushion indefendant's apartment, and defendant's argument that this evidence was significantly lessprobative than the stricken evidence is without merit.
Defendant's challenges to the prosecutor's summation are unpreserved and we decline toreview them in the interest of justice. As an alternative holding, we also reject them on the merits(see People v Overlee, 236 AD2d 133 [1997], lv denied 91 NY2d 976 [1998];People v D'Alessandro, 184 AD2d 114, 118-119 [1992], lv denied 81 NY2d 884[1993]).
We perceive no basis for reducing the sentence.
Motion seeking to strike portions of defendant's brief and reply brief granted.Concur—Andrias, J.P., Sweeny, Nardelli, Catterson and DeGrasse, JJ.