People v. Jones

• Decision Date: 07 February 1997
• Parties: PEOPLE of the State of New York, Respondent, v. Daniel JONES, Appellant.
• Court: New 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,
v.
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.

Before PINE, J.P., and LAWTON, CALLAHAN, DOERR and BOEHM, JJ.

MEMORANDUM:

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, ...