People v. Lovett

Mar 21, 2003
Versions:303 A.D.2d 952
755 N.Y.S.2d 906
2003 N.Y. App. Div. LEXIS 2902

—Appeal from a judgment of Monroe County Court (Marks, J.), entered June 14, 2001, convicting defendant after a jury trial of, inter alia, robbery in the first degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: County Court properly denied defendant’s motion to sever counts one and two of the 12-count indictment for trial. Although the offenses charged in the indictment involve four separate incidents, the offenses are “the same or similar in law” (CPL 200.20 [2] [c]) and thus are properly join-able (see generally People v Lane, 56 NY2d 1, 7 [1982]). A motion to sever counts joinable under CPL 200.20 (2) (c) “is addressed to the sound discretion of the court” (People v Daymon, 239 AD2d 907, 908 [1997], lv denied 94 NY2d 821 [1999]; see People v Spina, 275 AD2d 902, 903 [2000], lv denied 95 NY2d 969 [2000]). The burden on a defendant contending that the court abused its discretion in denying a severance motion is “a substantial one” (People v Mahboubian, 74 NY2d 174, 183 [1989]). Here, the evidence presented by the People with respect to each of the four incidents was “straightforward and easily segregated” (Daymon, 239 AD2d at 908; see People v McKnight, 284 AD2d 941, 942 [2001], lv denied 96 NY2d 921 [2001]), and defendant failed to meet his burden of establishing that he would be “unduly and genuinely prejudiced by the joint trial of the charges” (People v Brown, 254 AD2d 781, 782 [1998] , lv denied 92 NY2d 1029 [1998]; see People v O’Connor, 242 AD2d 908 [1997], lv denied 91 NY2d 895 [1998]).

Defendant failed to request an expanded identification charge and thus failed to preserve for our review his contention that the court erred in failing to give such a charge (see People v Rivera, 259 AD2d 637 [1999], lv denied 93 NY2d 977 [1999] ; People v Woods, 206 AD2d 901, 902 [1994], lv denied 84 NY2d 1040 [1995]). We decline to exercise our power to address that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Present — Green, J.P., Pine, Hurlbutt and Lawton, JJ.