| People v Griffin |
| 2013 NY Slip Op 07620 [111 AD3d 1413] |
| November 15, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vAnthony Griffin, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (Anthony F. Aloi, J.),rendered September 15, 2010. The judgment convicted defendant, upon a jury verdict, ofburglary in the first degree (two counts), robbery in the first degree, robbery in thesecond degree (three counts), assault in the second degree, criminal possession of aweapon in the third degree, intimidating a victim or witness in the second degree (twocounts), endangering the welfare of a child, conspiracy in the fourth degree, criminalsolicitation in the fourth degree, criminal possession of a controlled substance in thesecond degree, criminal possession of a controlled substance in the third degree,menacing in the third degree, criminal contempt in the second degree (two counts) andmaking a punishable false written statement.
It is hereby ordered that the judgment so appealed from is unanimously modified as amatter of discretion in the interest of justice and on the law by reversing those partsconvicting defendant of criminal possession of a weapon in the third degree andintimidating a victim or witness in the second degree and dismissing counts 8 through 10of the indictment, and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of, inter alia, two counts each of burglary in the first degree (Penal Law §140.30 [2], [3]), intimidating a victim or witness in the second degree (§ 215.16[1], [2]) and criminal contempt in the second degree (§ 215.50 [3]), three counts ofrobbery in the second degree (§ 160.10 [1], [2] [a]; [3]), and one count each ofrobbery in the first degree (§ 160.15 [3]), assault in the second degree (§120.05 [6]) and criminal possession of a weapon in the third degree (§ 265.02 [1]).We reject defendant's contention that County Court erred in denying his motion to severthe counts of the indictment relating to the order of protection and drug possession fromthe robbery and burglary counts. Where counts of an indictment are properly joinedbecause "either proof of the first offense would be material and admissible as evidence inchief upon a trial of the second, or proof of the second would be material and admissibleas evidence in chief upon a trial of the first" (CPL 200.20 [2] [b]), the trial court has nodiscretion to sever counts pursuant to CPL 200.20 (3) (see People v Bongarzone,69 NY2d 892, 895 [1987]; People v Lane, 56 NY2d 1, 7 [1982]). Here, thecounts were properly joined pursuant to CPL 200.20 (2) (b), and thus the court "lackedstatutory authority to grant defendant's [severance] motion" (People v Murphy, 28 AD3d1096, [*2]1097 [2006], lv denied 7 NY3d760 [2006]). Defendant "did not seek to reopen the [Huntley] hearing based onthe trial testimony or move for a mistrial" (People v Kendrick, 256 AD2d 420,420 [1998], lv denied 93 NY2d 900 [1999]), and he thus failed to preserve forour review his further contention that the court erred in refusing to suppress his statementto the police based on that trial testimony. We decline to exercise our power to reviewthat contention as a matter of discretion in the interest of justice (see CPL 470.15[6] [a]).
Contrary to defendant's contention, the testimony of the victim concerning theuncharged crimes of rape and sexual assault was admissible "as background material thatcompleted the narrative of the episode," and the court properly instructed the jury that thetestimony was admitted for that limited purpose (People v Strong, 234 AD2d990, 990 [1996], lv denied 89 NY2d 1016 [1997]; see also People vRobinson, 283 AD2d 989, 991 [2001], lv denied 96 NY2d 906 [2001]).
We agree with defendant, however, that the conviction of criminal possession of aweapon in the third degree and intimidating a victim or witness in the second degree isnot supported by legally sufficient evidence. Although defendant failed to preserve hiscontention with respect to those crimes for our review (see People v Devane, 78 AD3d1586, 1586-1587 [2010], lv denied 16 NY3d 858 [2011]), we neverthelessexercise our power to review it as a matter of discretion in the interest of justice (seeCPL 470.15 [6] [a]), and we modify the judgment accordingly. With respect tocriminal possession of a weapon, the evidence is legally insufficient to establish eitherthat defendant knew that his coconspirator possessed a knife or that he intended to use itunlawfully against another (see Penal Law §§ 265.01 [2]; 265.02[1]; People v Smith, 87AD3d 1169, 1170 [2011]). With respect to intimidating a victim or witness, theevidence likewise is legally insufficient to establish that defendant shared hiscoconspirator's intent to cause physical injury to the victim during the burglary androbbery (see § 215.16 [1], [2]; cf. People v Boler, 4 AD3d 768, 769 [2004], lv denied2 NY3d 761 [2004]). Although defendant preserved for our review his legalinsufficiency contention with respect to the remaining crimes, we conclude that it lacksmerit (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Furthermore,viewing the evidence in light of the elements of the remaining crimes as charged to thejury (see People vDanielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not againstthe weight of the evidence (see generally Bleakley, 69 NY2d at 495).
Defendant's challenge to the severity of the sentence lacks merit. Although defendantis correct that the aggregate maximum term exceeds the 50-year statutory limitation(see Penal Law former § 70.30 [1] [e] [vi]), the Department of Correctionsand Community Supervision will "calculate the aggregate maximum length ofimprisonment consistent with the applicable [statutory] limitation" and reduce themaximum term accordingly (People v Moore, 61 NY2d 575, 578 [1984]; seePeople v Jurgensen, 288 AD2d 937, 938 [2001], lv denied 97 NY2d 684[2001]). We have reviewed defendant's remaining contentions and conclude that they arewithout merit. Present—Smith, J.P., Centra, Fahey, Carni and Whalen, JJ.