People v. Lyde
| Decision Date | 15 December 1983 |
| Citation | 469 N.Y.S.2d 716,98 A.D.2d 650 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Raymond LYDE, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
O. Garcia-Rivera, New York City, for respondent.
G. Ludwig, for defendant-appellant.
Before SANDLER, J.P., and SULLIVAN, ROSS, ASCH and ALEXANDER, JJ.
Judgment of the Supreme Court, New York County, rendered August 4, 1982, which convicted defendant after a jury trial of four counts of robbery in the first degree (Penal Law § 160.15 subd. [4] ), one count each of attempted robbery in the first degree (Penal Law, §§ 110.00/160.15 subd. [4] ), robbery in the third degree (Penal Law § 160.05), attempted robbery in the third degree (Penal Law §§ 110.00/160.05), and criminal possession of a weapon in the third degree (Penal Law, § 265.02) and sentenced him to various consecutive terms which, in the aggregate totaled fifteen years to 30 years, is unanimously modified, on the law and facts, and in the interests of justice, to reduce defendant's conviction of four counts of robbery in the first degree to two counts of robbery in the second degree (Penal Law § 160.10) and two counts of robbery in the third degree (Penal Law, § 160.05), to reduce the conviction of attempted robbery in the first degree to attempted robbery in the second degree (Penal Law, §§ 110.00/160.10), and is otherwise affirmed and the matter is remitted to Supreme Court, New York County, for resentencing in accordance herewith.
Defendant was convicted of a series of robberies and attempted robberies of airline ticket offices. The counts of the indictment charging defendant with robbery first degree alleged that he displayed what appeared to be a pistol during the course of the commission of the crime and of the immediate flight therefrom. On appeal defendant argues that he was denied a fair trial by reason of the trial court's failure to sever the eight counts of the indictment, which alleged unrelated robberies, and the failure to charge the jury against commingling evidence of one of the robberies with another. He also argues that the evidence did not establish guilt of the crimes of robbery in the first degree beyond a reasonable doubt; that he was denied due process because of judicial prejudice and ineffective assistance of counsel.
Defendant's arguments addressed to refusal of the court to sever the various counts of the indictment and his charges of prejudicial conduct by the trial court and prosecutor are without merit. Various counts of an indictment charging separate crimes may properly be joined where, for example a defendant's identity is in issue and his modus operandi is sufficiently unique to make evidence proving the commission of one crime probative of the fact of the commission of the other (CPL § 200.20(2)(b); People v. Beam, 57 N.Y.2d 241, 252-3, 455 N.Y.S.2d 575, 441 N.E.2d 1093) or where the offenses are the same or similar in law. (CPL § 200.20(2)(c); People v. Jenkins, 50 N.Y.2d 981, 431 N.Y.S.2d 471, 409 N.E.2d 944). Here, where defendant's identity was squarely placed in issue, the court's denial of the severance motion was proper. Moreover, in face of the overwhelming evidence of guilt, the court's failure to charge the jury against commingling the evidence regarding the respective robberies is at most harmless error. (See People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787). It is clear that the jury considered each count separately; it acquitted defendant of one of the counts. Defendant's additional objections regarding the conduct of the trial court and the alleged ineffectiveness of counsel have been considered and found to be without merit.
However, as pointed out above, the robbery first degree counts of the indictment were predicated upon the fact that defendant "displayed what appeared to be a pistol" in the commission of the robberies. (PL 160.15(4)). That section provides that it shall be an affirmative defense "that such pistol, revolver,...
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