People v. Rios

• Decision Date: 07 June 2013
• Citation: 2013 N.Y. Slip Op. 04130,107 A.D.3d 1379,966 N.Y.S.2d 626
• Parties: The PEOPLE of the State of New York, Respondent, v. John E. RIOS, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

107 A.D.3d 1379

966 N.Y.S.2d 626

2013 N.Y. Slip Op. 04130

The PEOPLE of the State of New York, Respondent,

v.John E. RIOS, Defendant–Appellant.

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

June 7, 2013.

Robert M. Pusateri, Conflict Defender, Lockport (Edward P. Perlman of Counsel), for Defendant–Appellant.

John E. Rios, Defendant–Appellant Pro Se.

Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of Counsel), for Respondent.

PRESENT: CENTRA, J.P., FAHEY, CARNI, LINDLEY, and WHALEN, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him upon a jury verdict of one count each of grand larceny in the fourth degree (Penal Law § 155.30[8] ), aggravated unlicensed operation of a motor vehicle in the first degree (Vehicle and Traffic Law § 511[3][a][iii] ), driving while intoxicated as a felony (§§ 1192[3]; 1193[1][d][4][i] ), criminal contempt in the second degree (Penal Law § 215.50[3] ), and aggravated unlicensed operation of a motor vehicle in the second degree (Vehicle and Traffic Law § 511[2][a][ii] ), and two counts of petit larceny (Penal Law § 155.25). Contrary to defendant's contention, County Court properly denied his motion to sever those counts of the indictment relating to the incidents occurring on May 2009 from those counts relating to the incidents occurring on September 2009 because he failed to show “good cause for severance” ( People v. Gaston, 100 A.D.3d 1463, 1465, 953 N.Y.S.2d 780;seeCPL 200.20[3] ). Here, “the evidence as to the [May and September 2009 incidents] was presented separately and was readily capable of being segregated in the minds of the jury. The incidents occurred on different dates and the evidence as to each incident was presented through entirely different witnesses” ( People v. Ford, 11 N.Y.3d 875, 879, 874 N.Y.S.2d 859, 903 N.E.2d 256), and defendant failed to establish that there was a “ ‘substantial likelihood’ that the jury would be unable to consider the proof of each offense separately” ( People v. Santana, 27 A.D.3d 308, 309, 815 N.Y.S.2d 26,lv. denied7 N.Y.3d 794, 821 N.Y.S.2d 824, 854 N.E.2d 1288). Moreover, the fact that defendant was acquitted of three charges “ indicates that the jury was able to consider the proof concerning each count separately” ( Gaston, 100 A.D.3d at 1465, 953 N.Y.S.2d 780). Defendant also failed to make a “convincing showing” that he had important testimony to provide concerning the September 2009 incidents and a strong need to refrain from testifying as to the May 2009 incidents ( People v. Lane, 56 N.Y.2d 1, 8, 451 N.Y.S.2d 6, 436 N.E.2d 456 [internal quotation marks omitted] ). Defendant's burden to establish that the court abused its discretion in denying the severance motion was “a substantial one” ( People v. Mahboubian, 74 N.Y.2d 174, 183, 544 N.Y.S.2d 769, 543 N.E.2d 34), and he did not meet that burden here.

We agree with defendant, however, that the verdict with respect to the grand larceny in the fourth degree count (Penal Law § 155.30[8] ) is against the weight of the evidence, and we therefore modify the judgment accordingly. The conviction of that crime was based upon defendant's alleged theft of his former girlfriend's Jeep. The record establishes that, in May 2009, defendant's relationship with his former girlfriend had deteriorated. Consequently, defendant agreed to leave his girlfriend's house and never return if she “sign [ed] that [Jeep] over to him” and gave him the title to the Jeep. The girlfriend agreed and signed over the title to defendant. Defendant packed up the Jeep, drove around the block, and returned to the house 10 minutes later. Because defendant had violated their agreement, the girlfriend told defendant that “the deal was off,” took the title out of the Jeep without defendant's knowledge, and drove a different car to a friend's house. The girlfriend left the Jeep at her house with defendant. It is undisputed that the girlfriend did not remove the license plates or proof of insurance from the Jeep, nor did she remove the Jeep's keys from the house. The girlfriend also testified that defendant believed that he had a right to possess the Jeep and that she did not inform him otherwise.

Defendant was arrested for petit larceny and driving while intoxicated on May 17, 2009, and he remained in jail until September 16, 2009, at which time he returned to the girlfriend's house. Defendant observed a “for sale” sign on the Jeep and demanded that the girlfriend remove it because she was not allowed to sell “his” Jeep. The girlfriend finally convinced defendant to leave the house but, the next morning, defendant took the Jeep without her knowledge. That night defendant drove the Jeep while intoxicated and rolled it onto its side. Defendant was thereafter arrested for driving while intoxicated and for stealing the Jeep.

It is well established that “a good faith claim of right is properly a defense-not an affirmative defense-and thus, ‘the people have the...