People v. Davis

• Decision Date: 30 September 2011
• Parties: The PEOPLE of the State of New York, Respondent,v.Robert DAVIS, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

87 A.D.3d 1332
929 N.Y.S.2d 819
2011 N.Y. Slip Op. 06731

The PEOPLE of the State of New York, Respondent,
v.
Robert DAVIS, Defendant–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

Sept. 30, 2011.

[929 N.Y.S.2d 820]

Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of Counsel), for Defendant–Appellant.William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, GORSKI, AND MARTOCHE, JJ.MEMORANDUM:

[87 A.D.3d 1332] Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, two counts of rape in the first degree (Penal Law § 130.35[1] ). The indictment charged defendant with crimes arising from an incident in August 2005 involving one victim and a second incident in April 2006 involving a different victim. At defendant's request, Supreme Court severed the counts relating to the August 2005 incident from those relating to the April 2006 incident and granted separate trials. Defendant contends that dismissal of the indictment, rather than severance, was the appropriate remedy for the “misjoinder” of the unrelated charges relating to each incident. We reject that contention. We conclude that this case does not involve “misjoinder,” i.e., the improper joinder of unrelated charges in a single indictment ( see generally People v. Craig, 192 A.D.2d 323, 595 N.Y.S.2d 479, lv. denied 81 N.Y.2d 1011, 1012, 600 N.Y.S.2d 199, 200, 616 N.E.2d 856, 857; People v. Gadsden, 139 A.D.2d 925, 925–926, 528 N.Y.S.2d 955). Pursuant to CPL 200.20(1), “[a]n indictment must charge at least one crime and may, in addition, charge in separate counts one or more other offenses ... provided that all such offenses are joinable pursuant to [CPL 200.20(2) ].” Here, charges pertaining to the August 2005 incident were properly

[929 N.Y.S.2d 821]

joined with those pertaining to the April 2006 incident because the “offenses are defined by the same or similar statutory provisions and consequently are the same or similar in law” (CPL 200.20[2][c] ), despite the fact that they involve different victims ( see People v. Clark, 24 A.D.3d 1225, 806 N.Y.S.2d 834, lv. denied 6 N.Y.3d 832, 814 N.Y.S.2d 80, 847 N.E.2d 377; People v. Nickel, 14 A.D.3d 869, 870, 788 N.Y.S.2d 274, lv. denied 4 N.Y.3d 834, 796 N.Y.S.2d 589, 829 N.E.2d 682; see also People v. Burton, 83 A.D.3d 1562, 921 N.Y.S.2d 430).

Although defendant contends that dismissal of the indictment [87 A.D.3d 1333] is warranted because he was potentially prejudiced by the submission to the grand jury of charges concerning two unrelated incidents, we note that such potential for prejudice is always present when charges are joined pursuant to CPL 200.20(2)(c) ( see Preiser, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 11A, Penal Law § 200.20). Thus, CPL 200.20(3) vests the court with the authority to order a severance based on potential prejudice, i.e., where “there is a substantial likelihood that the jury would be unable to consider separately the proof as it relates to each offense” (CPL 200.20[3] [a]; see People v. Pierce, 14 N.Y.3d 564, 573, 904 N.Y.S.2d 255, 930 N.E.2d 176). Here, the court granted severance pursuant to CPL 200.20(3)(a), and we conclude that the circumstances of this case do not warrant the “ ‘exceptional remedy of dismissal’ ” of the indictment ( People v. Workman, 277 A.D.2d 1029, 1031, 716 N.Y.S.2d 198, lv. denied 96 N.Y.2d 764, 725 N.Y.S.2d 291, 748 N.E.2d 1087, quoting People v. Huston, 88 N.Y.2d 400, 409, 646 N.Y.S.2d 69, 668 N.E.2d 1362; see also People v. Ramirez, 298 A.D.2d 413, 751 N.Y.S.2d 248, lv. denied 99 N.Y.2d 563, 754 N.Y.S.2d 215, 784 N.E.2d 88).

Alternatively, defendant contends that the indictment should be dismissed because the prosecutor failed to instruct the grand jury to consider the August 2005 and April 2006 incidents separately. Defendant failed to preserve that contention for our review inasmuch as he failed to set forth that specific ground in that part of his omnibus motion seeking to dismiss the indictment ( see generally People v. Becoats, 71 A.D.3d 1578, 1579, 897 N.Y.S.2d 820, lv. denied 15 N.Y.3d 849, 909 N.Y.S.2d 26, 935 N.E.2d 818; People v. Gross, 71 A.D.3d 1526, 1527, 896 N.Y.S.2d 557, lv. denied 15 N.Y.3d 774, 907 N.Y.S.2d 462, 933 N.E.2d 1055; People v. Beyor, 272 A.D.2d 929, 708 N.Y.S.2d 535, lv. denied 95 N.Y.2d 832, 713 N.Y.S.2d 139, 735 N.E.2d 419). Further, after the court inspected the grand jury minutes and advised defendant that the prosecutor failed to give a limiting instruction with respect to the two incidents, defendant did not thereafter challenge the prosecutor's instructions ( see People v. Brown, 81 N.Y.2d 798, 595 N.Y.S.2d 370, 611 N.E.2d 271). In any event, any deficiency in the grand jury instructions did not impair the integrity of the grand jury proceeding so as to require dismissal of the indictment ( see generally People v. Walton, 70 A.D.3d 871, 874–875,...