People v. Matthews

• Decision Date: 11 July 1991
• Citation: 175 A.D.2d 24,573 N.Y.S.2d 157
• Parties: The PEOPLE of the State of New York, Respondent, v. Ronnie MATTHEWS, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 157

573 N.Y.S.2d 157

175 A.D.2d 24

The PEOPLE of the State of New York, Respondent, v. Ronnie MATTHEWS, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

July 11, 1991.

Before MURPHY, P.J., and MILONAS, ELLERIN, KUPFERMAN and RUBIN, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Harold Rothwax, J.), rendered August 29, 1988, convicting defendant after a jury trial of seven counts of robbery in the first degree, two counts of sodomy in the first degree, two counts of rape in the first degree, and one count of sexual abuse in the first degree, and sentencing him to a combination of consecutive and concurrent sentences aggregating eighty-seven and one-half to one hundred seventy-five years, which, reduced pursuant to Penal Law § 70.30(1)(c)(iii), is deemed to aggregate to twenty-five to fifty years, affirmed.

Defendant was convicted after trial of committing seven separate incidents, of robbery and sexual assault. The crimes occurred in city housing projects in upper Manhattan, two in the same building, between September 13 and December 22, 1987. Most of the incidents commenced with the knife point robbery of the victim's jewelry, and culminated in a sexual assault or abuse in a stairwell or rooftop. Each of the victims identified defendant at a lineup, and all but one identified him at trial.

Defendant was not entitled to separate trials. The motion, made as the trial was about to begin, was untimely. (CPL 255.20[1], [3]; People v. Kehn, 109 A.D.2d 912, 486 N.Y.S.2d 380). Moreover, the various counts in the indictment were not subject to a severance for "good cause shown" (CPL 200.20). The attacks were marked by a sufficiently unique modus operandi to support joinder under CPL 200.20(2)(b).

We do not find that the prosecutor committed error in summation. As noted, the counts were joinable, and as proof of one attack was admissible as proof of another, argument on that basis was eminently reasonable. Defendant also claims that the prosecutor improperly reminded the jury of his prior conviction for sodomy, but the prosecutor's argument that defendant's criminal past showed that defendant would not hesitate to place his self-interest above that of society was not outside the bounds of propriety.

We find without merit defendant's related claim that the court should not have told the jury that the People urged that the way the crimes were committed suggested that the same person committed them. The court's comment was accurate, and, since joinder on the basis of modus operandi was appropriate, the comment was equally appropriate. Nor is defendant entitled to a reversal because the court did not read each of the counts to the jury. The law regarding each of the similar charges that differed only as to date and victim was the same, and the court did give the jury appropriate advice to render a separate verdict as to each count.

There is no merit to defendant's claim that he was entitled to CPL Article 710 notice that his parole officer was going to testify that defendant had told him that defendant lived with his godmother at an address in upper Manhattan. The Court of Appeals has reserved deciding the issue whether the nature of the parole officer-parolee relationship is such that even routine, noncustodial questioning must be preceded by Miranda warnings if the questioning is concerned with possible criminal activity. (People v. English, 73 N.Y.2d 20, 24, 537 N.Y.S.2d 987, 534 N.E.2d 1195). However, the officer's testimony was limited to pedigree information which is not subject to the Miranda rule. (People v. Rivera, 26 N.Y.2d 304, 309, 310 N.Y.S.2d 287, 258 N.E.2d 699).

We also find that the trial court did not abuse its discretion at sentencing.

All concur except MURPHY, P.J. who dissents in a memorandum as follows:

MURPHY, Presiding Justice (dissenting):

The defendant was tried upon a twelve count indictment. The charges in the indictment were based upon seven separate incidents, each involving a different complainant. The incidents were in some respects similar. The assailant accosted each of his victims in the elevator of a New York City Housing Authority apartment building. The attacks uniformly began as knifepoint robberies and, in several of the incidents, escalated into sexual assaults committed either in a stairwell or on a roof landing.

In her summation the prosecutrix, over objection, urged the jury to consider the entire body of evidence in proof of each count of the indictment. She stated "all of these crimes had to be committed by the same person". She explained, "we know this from all the particularities of the crimes. The pattern of what this defendant did in a series--[objection overruled]". Before the close of her summation, she would reiterate, "[I]t had to be the same person that committed all of these crimes from the pattern and description [objection overruled]".

The trial court in its charge did not instruct the jury to consider the proof of each incident separately. Rather, the court emphasized that the People had proceeded upon the theory that the crimes had been committed in such a way as to suggest that they had been committed by the same person.

As a general matter a person may not be convicted of one crime based upon proof of another (see e.g., People v. Molineux, 168 N.Y. 264, 291-293, 61 N.E. 286; People v. Alvino, 71 N.Y.2d 233, 241, 525 N.Y.S.2d 7, 519 N.E.2d 808). Accordingly, when several factually distinct offenses are joined in the same indictment, the trial court is ordinarily bound to instruct the jury that the proof of each offense is to be considered separately and that the defendant's commission of one offense is not to be taken as proof of another crime charged (see People v. McNamee, 71 A.D.2d 559, 418 N.Y.S.2d 407; People v. Harris, 51 A.D.2d 937, 381 N.Y.S.2d 259; People v. Range, 49 A.D.2d 832, 373 N.Y.S.2d 573). The only exception to this rule is where the proof of one offense charged is, in fact, relevant to the proof of some element of another. In that case, joinder would be permitted, and presumably would be effectuated, pursuant to CPL § 200.20(2)(b) which provides that offenses are joinable when "proof of the first offense would be material and admissible as evidence in chief upon a trial of the second, or proof of the second would be material and admissible as evidence in chief upon a trial of the first".

It is not clear from the record presented on this appeal on what theory the various counts in the subject indictment were initially joined, nor is it clear on what grounds the defendant's pretrial motion for severance was denied. It is, however, quite clear that by the end of the trial both the People and the court were proceeding as if joinder had been accomplished within the authority of CPL § 200.20(2)(b), supra. Indeed, if the proof of each offense had not been "material and admissible" as evidence in chief upon a trial of the other offenses, as provided by CPL § 200.20(2)(b), both the prosecutrix's summation and the court's charge would have been seriously in error. The basic question, then, in evaluating the propriety of the People's summation and the court's charge is whether there is some evidentiary theory pursuant to which the facts relevant to each of the seven separate incidents underlying the indictment may be said to be mutually probative. The theory advanced by the People is that the several assaults were so similar in the manner of their commission as to be cumulatively probative of the assailant's identity.

Evidence of the modus operandi employed in the commission of separate crimes is, of course, relevant to establish the identity of the perpetrator, but only when the modus operandi is sufficiently unique to make it highly probable that the same person has committed each crime (see People v. Robinson, 68 N.Y.2d 541, 549, 510 N.Y.S.2d 837, 503 N.E.2d 485). In an effort to come within this exception to the general prohibition against using one crime as proof of another, the People point out that each victim was accosted at knifepoint in a housing project elevator and thereafter robbed as a prelude to a sexual assault. The People further point out that all of the incidents occurred within a three month period and that the housing projects in which they took place were located in "a distinct geographic area".

The sad fact is that although the incidents share certain similarities, there is nothing particularly unique about them. Assaults upon lone women in apartment building elevators culminating in rape or some other form of sexual attack are tragically common. Indeed, the pattern of the seven incidents at bar mirrors that of numerous other attacks upon women in this jurisdiction (see e.g. People v. Wheeler, 67 N.Y.2d 960, 502 N.Y.S.2d 983, 494 N.E.2d 88; People v. Acevedo, 32 N.Y.2d 941, 347 N.Y.S.2d 202, 300 N.E.2d 734; People v. Ennis, 30 N.Y.2d 535, 330 N.Y.S.2d 384, 281 N.E.2d 180; People v. Hache, 174 A.D.2d 309, 570 N.Y.S.2d 546; People v. Moyd, 162 A.D.2d 271, 556 N.Y.S.2d 347; People v. Clark, 161 A.D.2d 446, 555 N.Y.S.2d 359; People v. Allen, 140 A.D.2d 229, 528 N.Y.S.2d 380; People v. Larmond, 139 A.D.2d 668, 527 N.Y.S.2d 799; People v. Odom, 130 A.D.2d 776, 516 N.Y.S.2d 68; People v. Richards, 128 A.D.2d 387, 512 N.Y.S.2d 395; People v. Grubbs, 112 A.D.2d 104, 492 N.Y.S.2d 377; People v. Washington, 111 A.D.2d 418, 489 N.Y.S.2d 380; People v. Valdivia, 108 A.D.2d 885, 485 N.Y.S.2d 580; People v. Grant, 108 A.D.2d 823, 485 N.Y.S.2d 299; People v. McCann, 90 A.D.2d 554, 455 N.Y.S.2d 134; People v. Dozier, 85 A.D.2d 846, 447 N.Y.S.2d 35; People v. Best, 73 A.D.2d 651, 422 N.Y.S.2d 478). Characterizing these sorts of attacks as sufficiently unique to establish the identity of the assailant raises the very real possibility that one defendant will be prosecuted for the crimes of others. This possibility is not diminished in the present case by the fact that the...