| People v Schultz |
| 2015 NY Slip Op 04344 [128 AD3d 989] |
| May 20, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v John Schultz, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Anna Pervukhin and Rahshanda Sibley ofcounsel), for appellant, and appellant pro se.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Nicoletta J. Caferri, and Nancy Fitzpatrick Talcott of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Latella, J.), rendered March 12, 2009, convicting him of burglary in the first degree,robbery in the first degree, robbery in the second degree, assault in the second degree(two counts), criminal possession of stolen property in the fifth degree, resisting arrest,and possession of burglar's tools, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, trial counsel's failure to move to reopen thesuppression hearing did not deprive him of the effective assistance of counsel (see People v Crespo, 117AD3d 1538 [2014]).
The joinder of both burglaries in a single indictment was proper under CPL 200.20(2) (b), as evidence from the first burglary, which occurred in close spatial and temporalproximity to the second burglary, could be admissible to complete the narrative of theevents relating to the second burglary and to provide necessary background information(see People v Morris, 21NY3d 588, 594 [2013]; People v Harris, 117 AD3d 847 [2014]). Thus, trial counselwas not ineffective for failing to move for severance of the indictment (comparePeople v Bongarzone, 69 NY2d 892, 895 [1987], and People v Zinaman, 259AD2d 327 [1999], with Peoplev Hall, 120 AD3d 588 [2014]).
Many of the defendant's claims of prosecutorial misconduct are unpreserved forappellate review (see CPL 470.05). In any event, we are satisfied that thedefendant was not deprived of a fair trial as a result of the prosecutor's conduct (see People v Williams, 8 NY3d854, 855 [2007]; People vMcDonald, 79 AD3d 771, 772 [2010]).
The defendant's contention that he was deprived of his right to testify before thegrand jury was waived, as he failed to move to dismiss the indictment within five days ofhis arraignment (see CPL 190.50 [5] [c]; People v Venable, 7 AD3d 647 [2004]; People vObee, 232 AD2d 430, 431 [1996]).
[*2] The defendant's contention that he was prejudiced by the use of his arrestphotograph at trial is without merit. "An arrest photograph may be admitted into evidencein order to establish that a defendant's appearance was different at the time of thecommission of the crime than at trial" (People v Ahmr, 22 AD3d 593, 594 [2005]; see People vBowels, 220 AD2d 605, 606 [1995]).
The defendant's remaining contentions, including those raised in his pro sesupplemental brief, are unpreserved for appellate review and, in any event, without merit.Dillon, J.P., Balkin, Miller and Maltese, JJ., concur.