People v. Cannon

• Decision Date: 17 June 2003
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent,<BR>v.<BR>RICHARD CANNON, Appellant.
• Court: New York Supreme Court — Appellate Division

306 A.D.2d 130

761 N.Y.S.2d 46

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v.RICHARD CANNON, Appellant.

Decided June 17, 2003.

Concur — Mazzarelli, J.P., Ellerin, Williams, Lerner and Gonzalez, JJ.

The court properly denied defendant's motion to sever the counts relating to the separate incidents. In the first place, the court properly denied this motion as untimely, since it was made during trial and defendant did not establish good cause (see CPL 255.20 [3]).

In reaching the merits of the motion in the alternative, the court properly declined to grant a discretionary severance pursuant to CPL 200.20 (3). These counts were properly joined under CPL 200.20 (2) (c) and defendant did not establish good cause for a severance (see People v Streitferdt, 169 AD2d 171, 176 [1991], lv denied 78 NY2d 1015 [1991]). While there was additional evidence supporting the last incident, there was no material variance in the quantity of proof presented with respect to the various offenses (see People v Ndeye, 159 AD2d 397 [1990], lv denied 76 NY2d 793 [1990]). Each victim had a good opportunity to view the assailant and made a reliable identification. All but one victim identified defendant at trial, and that victim identified the knife used. Furthermore, since defendant was acquitted of the charges relating to one of the incidents, his claim that the jury was unable to consider separately the evidence pertaining to each incident is purely speculative (see People v Jones, 244 AD2d 359 [1997], lv denied 91 NY2d 974 [1998]). Finally, defendant failed to make a convincing showing that he had important testimony to give concerning some counts and a strong need to refrain from testifying as to others (see People v Lane, 56 NY2d 1 [1982]). While defendant claims he wanted to testify in order to explain some consciousness-of-guilt evidence arising out of the last incident, that evidence was a very minor component of the People's proof.

Viewed as a whole and in context of the evidence, the court adequately instructed the jury to consider the evidence supporting each charge separately (see People v Fields, 87 NY2d 821 [1995]). As previously noted, the jury acquitted defendant of the counts relating to one of the incidents.

The court properly denied defendant's suppression motion. The showup identification by the victim of the last incident, which occurred about 30 to 40 minutes after the robbery and about 12 blocks away from the scene of the crime, immediately following a...