People v. Jones

Decision Date07 February 1997
PartiesPEOPLE of the State of New York, Respondent, v. Daniel JONES, Appellant.
CourtNew York Supreme Court — Appellate Division

Page 495

654 N.Y.S.2d 495
236 A.D.2d 846
PEOPLE of the State of New York, Respondent,
Daniel JONES, Appellant.
Supreme Court, Appellate Division,
Fourth Department.
Feb. 7, 1997.

Page 497

Daniel Jones, Alden, Appellant Pro Se.

Kevin M. Dillon by Paul Williams, Buffalo, for Respondent.



We reject the contention of defendant that Supreme Court erred in denying his motion to sever those counts in the indictment charging him with three separate sexual assaults. The offenses were joinable because the identity of defendant was at issue and his modus operandi was "sufficiently unique to make proof of his commission of one [assault] probative of his commission of the other[s]" (People v. Nix, 192 A.D.2d 1116, 596 N.Y.S.2d 283, reconsideration granted 195 A.D.2d 1087, 602 N.Y.S.2d 564, lv denied 82 N.Y.2d 757, 603 N.Y.S.2d 999, 624 N.E.2d 185; see, CPL 200.20[2][b]; People v. Bongarzone, 69 N.Y.2d 892, 895, 515 N.Y.S.2d 227, 507 N.E.2d 1083; People v. Coble, 168 A.D.2d 981, 564 N.Y.S.2d 927, lv denied 78 N.Y.2d 954, 573 N.Y.S.2d 649, 578 N.E.2d 447). Further, the offenses charged in the indictment are "the same or similar in law" (CPL 200.20[2][c]; see, People v. Berta, 213 A.D.2d 659, 624 N.Y.S.2d 211, lv denied 85 N.Y.2d 969, 629 N.Y.S.2d 729, 653 N.E.2d 625). In order to be entitled to severance pursuant to CPL 200.20(2)(c), defendant was obliged to "persuade the court that the severance should be granted 'in the interest of justice and for good cause shown' " (People v. Lane, 56 N.Y.2d 1, 7, 451 N.Y.S.2d 6, 436 N.E.2d 456, quoting CPL 200.20[3] ). Defendant failed to establish that there was "[s]ubstantially more proof on one or more [of the] joinable offenses than on others and there [was] a substantial likelihood that the jury would be unable to consider separately the proof as it relate[d] to each offense" (CPL 200.20[3][a] ). The proof with respect to each assault was straightforward and easily divisible (see, People v. Bruce, 216 A.D.2d 913, 914, 629 N.Y.S.2d 883, lv denied 86 N.Y.2d 872, 635 N.Y.S.2d 953, 659 N.E.2d 776; see also, People v. Johnson, 155 A.D.2d 924, 547 N.Y.S.2d 747, lv denied 75 N.Y.2d 920, 555 N.Y.S.2d 39, 554 N.E.2d 76), as demonstrated by the acquittal of defendant of the charges against one of the victims.

Defendant failed to preserve for our review his contention that the court erred in permitting the mother of one of the victims and a police officer to testify to the identification of defendant by the victim when defendant was arrested. Also unpreserved is his contention that his van was improperly impounded and that the items seized therefrom should not have been admitted (see, CPL 470.05[2] ). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see, CPL 470.15[6][a] ).

The failure of the People to provide defendant with the 1991 test result of a swab taken during the physical examination of a victim and a laboratory report of a 1992 test of the swab does not require reversal. Although the 1991 test result was exculpatory and defendant was entitled to that information (see, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215), the record establishes that defendant was aware of and made use of that information at trial; he therefore suffered no prejudice (see, People v. Robinson, 181 A.D.2d 983, 984, 582 N.Y.S.2d 305, lv denied 80 N.Y.2d 837, 587 N.Y.S.2d 921, 600 N.E.2d 648; People v. Smith, 162 A.D.2d 734, 735, 557 N.Y.S.2d 132, lv denied 77 N.Y.2d 882, 568 N.Y.S.2d 925, 571 N.E.2d 95). The record does not indicate that defendant requested the opportunity to perform an independent test of the swab; thus, there is no merit to his contention that he was prevented from performing an independent test because the swab was consumed in the 1992 test (see, People v. Allgood, 70 N.Y.2d 812, 523 N.Y.S.2d 431, ...

To continue reading

Request your trial
5 cases
  • People v. Raucci
    • United States
    • New York Supreme Court — Appellate Division
    • 27 Junio 2013
    ...Zinaman, 259 A.D.2d 327, 327, 687 N.Y.S.2d 316 [1999],lv. denied93 N.Y.2d 931, 693 N.Y.S.2d 514, 715 N.E.2d 517 [1999];People v. Jones, 236 A.D.2d 846, 846, 654 N.Y.S.2d 495 [1997] ). Additionally, offenses may be joined where, although based upon different criminal transactions, “such offe......
  • People v. O'Connor
    • United States
    • New York Supreme Court — Appellate Division
    • 30 Septiembre 1997
    ... ...         The issue whether the court erred in quashing a subpoena for the parole records of a witness of the People is based upon material outside the record, and we are therefore unable to review the propriety of the court's ruling (see, People v. Jones, 236 A.D.2d 846, 654 N.Y.S.2d 495; People v. McKethan, 225 A.D.2d 800, 801, 640 N.Y.S.2d 570, lv. denied 88 N.Y.2d 938, 647 N.Y.S.2d 172, 670 N.E.2d 456) ...         The contention of defendant that the court erred in admitting a 911 tape of a telephone call by one of the victims after ... ...
  • People v. Fosmer
    • United States
    • New York Supreme Court — Appellate Division
    • 11 Abril 2002
    ... ... the jury would be unable to separately consider the proof of each crime (see, CPL 200.20 [3] [a]; see also, People v Johnson, 268 A.D.2d 891, lv denied 94 N.Y.2d 921); indeed, it acquitted him of those counts pertaining to the youngest girl (see, People v Kelly, supra, at 512-513; People v Jones, 236 A.D.2d 846, lv denied 90 N.Y.2d 859; People v Cunningham, 229 A.D.2d 669; People v Burnett, supra, at 789) ... Also unpersuasive is defendant's claim that County Court erred in permitting the prosecutor to ask him on cross-examination whether he had been accused of sexual abuse in the past ... ...
  • People v. McKnight
    • United States
    • New York Supreme Court — Appellate Division
    • 8 Junio 2001
    ... ... The proof with respect to each victim "was straightforward and easily divisible" (People v Jones, 236 A.D.2d 846, lv denied 90 N.Y.2d 859). In addition, "[d]efendant failed to make a 'convincing showing that [he had] both important testimony to give' concerning the offenses relating to one victim and 'a genuine need to refrain from testifying' on the offenses relating to the other victim" ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT