People v. Rios

• Decision Date: 30 April 2010
• Parties: The PEOPLE of the State of New York, Respondent, v. Elvin RIOS, Defendant-Appellant. (Appeal No. 1.)
• Court: New York Supreme Court — Appellate Division

899 N.Y.S.2d 769

72 A.D.3d 1489

The PEOPLE of the State of New York, Respondent,

v.Elvin RIOS, Defendant-Appellant. (Appeal No. 1.)

Supreme Court, Appellate Division, Fourth Department, New York.

April 30, 2010.

The Legal Aid Bureau of Buffalo, Inc., Buffalo (Susan C. Ministero of Counsel), for Defendant-Appellant.

Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of Counsel), for Respondent.

PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, AND GREEN, JJ.

MEMORANDUM:

In appeal No. 1, defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, two counts of burglary in the first degree (Penal Law § 140.30[2], [3] ) and one count of robbery in the first degree (§ 160.15[3] ). In appeal No. 2, defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, three counts of forgery in the second degree (§ 170.10[1] ).

Defendant failed to preserve for our review his contention in appeal No. 1 that the conviction of burglary in the first degree and robbery in the first degree is not supported by legally sufficient evidence ( see People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946; People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919). Viewing the evidence in light of the elements of the crimes as charged to the jury ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we reject defendant's further contention in appeal No. 1 that the verdict is against the weight of the evidence ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

We reject the contention of defendant in each appeal that County Court erred in refusing to suppress the victim's identification of him in a photo array. The court was entitled to credit the testimony of the police officers at the suppression hearing that they did not urge the victim to make a particular selection from the photo array. We perceive no basis to disturb that credibility determination inasmuch as it cannot be said that the photo array was unduly suggestive ( see People v. Diggs, 19 A.D.3d 1098, 796 N.Y.S.2d 802, lv. denied 5 N.Y.3d 787, 801 N.Y.S.2d 808, 835 N.E.2d 668, amended on rearg. 21 A.D.3d 1438, 801 N.Y.S.2d 551; see generally People v. Chipp, 75 N.Y.2d 327, 335, 553 N.Y.S.2d 72, 552 N.E.2d 608, cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70; People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380).

Defendant further contends in each appeal that the court erred in consolidating the indictments for trial because he made the requisite showing of good cause why the indictments should be tried separately pursuant to CPL 200.20(3). Even assuming, arguendo, that defendant preserved that contention for our review ( see CPL 470.05[2] ), we conclude that it lacks merit." '[T]he decision to consolidate separate indictments under CPL 200.20[ (4) ] is committed to the sound discretion of the [court] in light of the circumstances of the individual case, and the decision is reviewable on appeal ... only to the extent that there has been an abuse of that discretion as a matter of law' " ( People v. Bankston, 63 A.D.3d 1616, 1616, 880 N.Y.S.2d 417, quoting People v. Lane, 56 N.Y.2d 1, 8, 451 N.Y.S.2d 6, 436 N.E.2d 456; see CPL 200.20[5] ). Here, the offenses in each indictment were joinable pursuant to CPL 200.20(2)(a) inasmuch as they were based upon the same criminal transaction ( see CPL 40.10[2] ), and thus it cannot be said that the court abused its discretion in consolidating the indictments for trial ( see CPL 200.20[4], [5]; see generally People v. Brown, 254 A.D.2d 781, 782, 680 N.Y.S.2d 328, lv. denied 92 N.Y.2d 1029, 684 N.Y.S.2d 494, 707 N.E.2d 449; People v. Nelson, 133 A.D.2d 470, 471, 519 N.Y.S.2d 686, lv. denied 71 N.Y.2d 971, 529 N.Y.S.2d 83, 524 N.E.2d 437, 72 N.Y.2d 864, 532 N.Y.S.2d 514, 528 N.E.2d 904).

We reject the contention of defendant in each appeal that he was denied a fair trial by prosecutorial misconduct. To the extent that defendant contends that the prosecutor improperly elicited the testimony of a police detective who acknowledged that he was familiar with defendant prior to the date on which the offenses at issue were committed, the court struck that testimony and issued a curative instruction to which defendant did not object. Thus, "the curative instruction 'must be deemed to have corrected the alleged error[ ] to defendant's satisfaction'...