| People v Goodrell |
| 2015 NY Slip Op 05851 [130 AD3d 1502] |
| July 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vPaul W. Goodrell, Appellant. |
Williams, Heinl, Moody & Buschman, P.C., Auburn (Mario J. Gutierrez ofcounsel), for defendant-appellant.
Jon E. Budelmann, District Attorney, Auburn (Brian T. Leeds of counsel), forrespondent.
Appeal from a judgment of the Cayuga County Court (Mark H. Fandrich, A.J.),rendered August 7, 2012. The judgment convicted defendant, upon a jury verdict, ofendangering the welfare of a child (two counts), public lewdness (two counts) andburglary in the third degree as a sexually motivated felony (two counts).
It is hereby ordered that the judgment so appealed from is unanimously modified as amatter of discretion in the interest of justice by directing that the sentences imposed oneach count of burglary in the third degree as a sexually motivated felony shall runconcurrently with respect to each other and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a juryverdict, of two counts each of endangering the welfare of a child (Penal Law§ 260.10 [1]), public lewdness (§ 245.00), and burglary in thethird degree as a sexually motivated felony (§§ 130.91 [1]; 140.20).We reject defendant's contention that County Court erred in denying his motion to severinasmuch as the offenses "were part of a single continuing incident and were thusproperly joinable pursuant to CPL 200.20 (2) (a)" (People v Lee, 275 AD2d 995,997 [2000], lv denied 95 NY2d 966 [2000]). In addition, "[t]he offenses wereproperly joined because they involved incidents in which proof with respect to one crimewould be material and admissible as evidence[-]in[-]chief in a trial with respect to theother crimes" (People vMcAvoy, 70 AD3d 1467, 1467 [2010], lv denied 14 NY3d 890 [2010];see CPL 200.20 [2] [b]). Inasmuch as "the offenses were properly joinable underCPL 200.20 (2) (a) or (b), discretionary severance was not available" (Lee, 275AD2d at 997; see CPL 200.20 [3]; People v Lane, 56 NY2d 1, 7[1982]).
We reject defendant's further contention that the court erred in refusing to suppressthe identification testimony of a middle school custodian. Contrary to defendant'scontention, the photo array used in the pretrial identification procedure was not undulysuggestive. "There is no requirement that the photograph of a defendant shown as part ofa photo array be surrounded by photographs of individuals nearly identical inappearance" (People vStarks, 91 AD3d 975, 975 [2012], lv denied 18 NY3d 998 [2012]), and,here, we conclude that the alleged variations in appearance between defendant and theother persons depicted in the photo array were "not sufficient to create a substantiallikelihood that the defendant would be singled out for identification" (People vChipp, 75 NY2d 327, 336 [1990], cert denied 498 US 833 [1990]; see People v Hicks, 110 AD3d1488, 1489 [2013], lv denied 22 NY3d 1156 [2014]; People v Davis, 15 AD3d930, 931 [2005], lv denied 5 NY3d 761 [2005]). Defendant's furthercontention that the court erred in failing to suppress the prospective in-courtidentification testimony of one of the victims is moot, inasmuch as that victim did notidentify defendant at trial (see People v Townsley, 240 AD2d 955, 957 [1997],lv denied 90 NY2d 943 [1997], reconsideration denied 90 NY2d 1014[1997]).
We reject defendant's contention that he was unduly prejudiced by the court'sMolineux ruling. Here, the evidence of uncharged crimes and prior bad acts wasproperly admitted in [*2]evidence to demonstratedefendant's motive, intent and identity (see generally People v Molineux, 168 NY264, 293-294 [1901]; People v Wemette, 285 AD2d 729, 731 [2001], lvdenied 97 NY2d 689 [2001]), and its probative value was not outweighed by itsprejudicial effect (see Wemette, 285 AD2d at 731). We note, moreover, that "thecourt's limiting instruction minimized any prejudice to defendant" (People v Washington, 122AD3d 1406, 1408 [2014]). Even assuming, arguendo, that the court erred inadmitting the testimony of a victim of a prior incident who was unable to provide anin-court identification of defendant, we conclude that the error is harmless (seegenerally People v Crimmins, 36 NY2d 230, 241-242 [1975]).
Contrary to defendant's contention, viewing the evidence in the light most favorableto the People (see People v Contes, 60 NY2d 620, 621 [1983]), we conclude thatthe evidence is legally sufficient to support the conviction of both counts of publiclewdness (see Matter of Jeffrey V., 185 AD2d 241, 241-242 [1992]; Matter ofPaul R., 131 AD2d 764, 764-765 [1987]). We further conclude that, viewing theevidence in light of the elements of all of the crimes as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), the verdict is not against the weight of the evidence (see People v Judware, 75AD3d 841, 845 [2010], lv denied 15 NY3d 853 [2010]; see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]). We agree with defendant, however,that the sentence is unduly harsh and severe under the circumstances of this case, and wetherefore modify the judgment as a matter of discretion in the interest of justice bydirecting that the sentences imposed on each count of burglary in the third degree as asexually motivated felony shall run concurrently with respect to each other (seeCPL 470.15 [6] [b]). Present—Centra, J.P., Lindley, Sconiers, Whalen andDeJoseph, JJ.