| People v Rios |
| 2010 NY Slip Op 03534 [72 AD3d 1489] |
| April 30, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Elvin Rios,Appellant. (Appeal No. 1.) |
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Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.), renderedOctober 10, 2008. The judgment convicted defendant, upon a jury verdict, of burglary in the firstdegree (two counts), robbery in the first degree, and grand larceny in the fourth degree (twocounts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon ajury verdict of, inter alia, two counts of burglary in the first degree (Penal Law § 140.30[2], [3]) and one count of robbery in the first degree (§ 160.15 [3]). In appeal No. 2,defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, three countsof forgery in the second degree (§ 170.10 [1]).
Defendant failed to preserve for our review his contention in appeal No. 1 that the convictionof burglary in the first degree and robbery in the first degree is not supported by legallysufficient evidence (see People vHawkins, 11 NY3d 484, 492 [2008]; People v Gray, 86 NY2d 10, 19 [1995]).Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we reject defendant's further contention in appeal No. 1 that the verdict isagainst the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495[1987]).
We reject the contention of defendant in each appeal that County Court erred in refusing tosuppress the victim's identification of him in a photo array. The court was entitled to credit thetestimony of the police officers at the suppression hearing that they did not urge the victim tomake a particular selection from the photo array. We perceive no basis to disturb that credibilitydetermination inasmuch as it cannot be said that the photo array was unduly suggestive (see People v Diggs, 19 AD3d1098 [2005], lv denied 5 NY3d 787 [2005], amended on rearg 21 AD3d1438 [2005]; see generally People v Chipp, 75 NY2d 327, 335 [1990], cert denied498 US 833 [1990]; People v Prochilo, 41 NY2d 759, 761 [1977]).[*2]
Defendant further contends in each appeal that the courterred in consolidating the indictments for trial because he made the requisite showing of goodcause why the indictments should be tried separately pursuant to CPL 200.20 (3). Evenassuming, arguendo, that defendant preserved that contention for our review (see CPL470.05 [2]), we conclude that it lacks merit. " '[T]he decision to consolidate separate indictmentsunder CPL 200.20 [(4)] is committed to the sound discretion of the [court] 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 v Bankston, 63 AD3d1616, 1616 [2009], quoting People v Lane, 56 NY2d 1, 8 [1982]; see CPL200.20 [5]). Here, the offenses in each indictment were joinable pursuant to CPL 200.20 (2) (a)inasmuch as they were based upon the same criminal transaction (see CPL 40.10 [2]),and thus it cannot be said that the court abused its discretion in consolidating the indictments fortrial (see CPL 200.20 [4], [5]; see generally People v Brown, 254 AD2d 781, 782[1998], lv denied 92 NY2d 1029 [1998]; People v Nelson, 133 AD2d 470, 471[1987], lv denied 71 NY2d 971 [1988], lv denied upon reconsideration 72 NY2d864 [1988]).
We reject the contention of defendant in each appeal that he was denied a fair trial byprosecutorial misconduct. To the extent that defendant contends that the prosecutor improperlyelicited the testimony of a police detective who acknowledged that he was familiar withdefendant prior to the date on which the offenses at issue were committed, the court struck thattestimony and issued a curative instruction to which defendant did not object. Thus, "the curativeinstruction 'must be deemed to have corrected the alleged error[ ] to defendant's satisfaction' "(People v Wallace, 59 AD3d1069, 1071 [2009], lv denied 12 NY3d 861 [2009]). Defendant failed to preserve forour review his contention with respect to an allegedly improper comment by the prosecutor onsummation (see People v Douglas,60 AD3d 1377 [2009], lv denied 12 NY3d 914 [2009]), and we decline to exerciseour power to review it as a matter of discretion in the interest of justice (see CPL 470.15[6] [a]).
Finally, the sentence in each appeal is not unduly harsh or severe. Present—Scudder,P.J., Fahey, Lindley and Green, JJ.