People v. Mack
| Decision Date | 06 May 1985 |
| Citation | 488 N.Y.S.2d 815,111 A.D.2d 186 |
| Parties | The PEOPLE, etc., Respondent, v. Brian MACK, Appellant. |
| Court | New York Supreme Court — Appellate Division |
David Pomerantz, Garden City, for appellant.
Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Brian D. Foley, Asst. Dist. Attys., Brooklyn, and S. Blake Adams, New York City, of counsel), for respondent.
Before MOLLEN, P.J., and TITONE, O'CONNOR and RUBIN, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Kings County, rendered November 3, 1982, convicting him of robbery in the second degree (two counts) and criminal possession of a weapon in the fourth degree, upon a jury verdict, and sentencing him as a second felony offender to consecutive indeterminate terms of imprisonment of seven and one-half years to fifteen years on each of the robbery counts, and a term of imprisonment of one year on the criminal possession of a weapon count to be served concurrently with the first robbery count.
Judgment affirmed.
By Kings County Indictment Number 1438/82, the defendant was accused of committing the crimes of robbery in the first degree and criminal use of a firearm in the first degree, it being alleged that on or about March 13, 1982, the defendant forcibly stole property from Richard Steier, and that the defendant displayed what appeared to be a handgun "in the course of the commission of the [robbery] and of immediate flight therefrom".
The defendant was accused in the same indictment of committing the crimes of robbery in the second degree, criminal use of a firearm in the second degree and criminal possession of a weapon in the fourth degree. These allegations stemmed from an incident which the Grand Jury alleged occurred on or about March 14, 1982, involving a different complaining witness, Morton Weinberg.
Prior to trial the defendant moved, inter alia, for an order severing the two criminal episodes and granting separate trials. The basis for the application was two-fold. First, the defendant argued, the two robberies involved different complaining witnesses "and [were] not so closely related in criminal purpose as to constitute elements or integral parts of a single criminal venture". Second, the defendant's right to a fair trial would be jeopardized because "[t]here is obvious danger of serious prejudice to defendant if all the charges are required to be litigated before the same jury". The defendant argued that because the charges are essentially the same there was a danger of conviction of one offense "upon proof that he committed another * * * The defendant would be portrayed in the minds of the jurymen as a person with a propensity for criminally assaulting others with a consequent obscuring of the factual issue of defendant's guilt or innocence". The branch of the motion which was to sever and for separate trials was denied.
On this appeal the defendant contends, inter alia, that the denial of that branch of his pretrial motion which was for a severance and separate trials was error for the same reasons as those stated in his pretrial motion. We disagree.
In cases where joinability rests solely upon the fact that the offenses charged are defined by the same or similar statutory provisions, applications for severance are addressed to the trial court's sound discretion pursuant to CPL 200.20 (3) and will be granted "only if [the movant] can 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).
In the case at bar, the defendant's conviction of two counts of robbery is predicated on distinct events occurring on or about March 13 and March 14, 1982, which events involved different victims (see People v. Fiore, 34 N.Y.2d 81, 356 N.Y.S.2d 38, 312 N.E.2d 174). The crimes were "the...
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