People v. Ruiz

• Decision Date: 02 March 2017
• Citation: 47 N.Y.S.3d 806,148 A.D.3d 1212
• Parties: The PEOPLE of the State of New York, Respondent, v. Luis RUIZ, Appellant.
• Court: New York Supreme Court — Appellate Division

148 A.D.3d 1212
47 N.Y.S.3d 806

The PEOPLE of the State of New York, Respondent,
v.
Luis RUIZ, Appellant.

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

March 2, 2017.

47 N.Y.S.3d 807

James A. Caruso, Troy, for appellant, and appellant pro se.

Joel E. Abelove, District Attorney, Troy (Vincent J. O'Neill of counsel), for respondent.

Before: PETERS, P.J., LYNCH, DEVINE, CLARK and AARONS, JJ.

DEVINE, J.

148 A.D.3d 1213

Appeal from a judgment of the County Court of Rensselaer County (Jacon, J.), rendered December 8, 2011, upon a verdict convicting defendant of the crimes of criminal use of a firearm in the first degree (four counts), robbery in the first degree (three counts), menacing in the second degree (three counts), burglary in the first degree, attempted robbery in the first degree, criminal use of a firearm in the second degree and petit larceny.

Defendant was charged in an indictment with numerous offenses after he and an accomplice, Ryan Warner, allegedly committed a home invasion burglary in August 2010 and armed robberies of convenience stores in September and October 2010. A jury trial ensued at which Warner testified against defendant and, at its conclusion,

47 N.Y.S.3d 808

defendant was found guilty of four counts of criminal use of a firearm in the first degree, three counts of robbery in the first degree, three counts of menacing in the second degree, and one count each of burglary in the first degree, attempted robbery in the first degree, criminal use of a firearm in the second degree and petit larceny. County Court thereafter sentenced defendant, as a persistent violent felony offender, to an aggregate prison term of 60 years to life. Defendant appeals and we affirm.

County Court properly denied defendant's pretrial motion to sever the counts involving the home invasion from those involving the robberies. The law is clear that "the People may join multiple offenses in an indictment, even though based on separate and distinct criminal transactions, ... if they are of such a nature that proof of either offense would be material and admissible as evidence-in-chief upon the trial of the other" (People v. Carter, 74 A.D.3d 1375, 1378, 903 N.Y.S.2d 172 [2010] [internal quotation marks and citations omitted], lvs. denied 15 N.Y.3d 772, 907 N.Y.S.2d 460, 933 N.E.2d 1053 [2010] ; see CPL 200.20[2][b] ; People v. Raucci, 109 A.D.3d 109, 117, 968 N.Y.S.2d 211 [2013], lv. denied 22 N.Y.3d 1158, 984 N.Y.S.2d 642, 7 N.E.3d 1130 [2014] ). In that regard, "evidence of ‘a distinctive repetitive pattern’ of criminal conduct may be admitted [as part of the People's case-in-chief] to show the defendant's identity[,] [and] [r]epeated commission of similar crimes with the same accomplice is an example of such a pattern" (People v. Arafet, 13 N.Y.3d 460, 466, 892 N.Y.S.2d 812, 920 N.E.2d 919 [2009], quoting People v. Allweiss, 48 N.Y.2d 40, 48, 421 N.Y.S.2d 341, 396 N.E.2d 735 [1979] ; see

148 A.D.3d 1214

People v. Molineux, 168 N.Y. 264, 293, 61 N.E. 286 [1901] ). Here, although the types of locations involved in the three incidents differed, they are fundamentally similar in that they reveal a continuing partnership between defendant and Warner to take the property of others by force of arms (see People v. Arafet, 13 N.Y.3d at 466, 892 N.Y.S.2d 812, 920 N.E.2d 919 ; People v. Whitley, 14 A.D.3d 403, 405, 788 N.Y.S.2d 94 [2005], lv. denied 4 N.Y.3d 892, 798 N.Y.S.2d 737, 831 N.E.2d 982 [2005] ; People v. Torres, 249 A.D.2d 19, 19–20, 671 N.Y.S.2d 43 [1998], lv. denied 92 N.Y.2d 907, 680 N.Y.S.2d 71, 702 N.E.2d 856 [1998] ; People v. Palmer, 263 A.D.2d 361, 362, 693 N.Y.S.2d 539 [1999], lv. denied 93 N.Y.2d 1024, 697 N.Y.S.2d 583, 719 N.E.2d 944 [1999], cert. denied 528 U.S. 1051, 120 S.Ct. 592, 145 L.Ed.2d 492 [1999] ). Inasmuch as proof of the home invasion burglary would therefore have been admissible as evidence-in-chief upon a trial related to the subsequent robberies, the counts were properly joined pursuant to CPL 200.20(2)(b) and County Court lacked statutory authority to sever them (see CPL 200.20[3] ; People v. Wells, 141 A.D.3d 1013, 1016–1017, 35 N.Y.S.3d 795 [2016] ; People v. Griffin, 111 A.D.3d 1413, 1414, 975 N.Y.S.2d 306 [2013], lv. denied 23 N.Y.3d 1037, 993 N.Y.S.2d 250, 17 N.E.3d 505 [2014] ).

Defendant next complains of County Court's decision, following a Wade hearing, to deny his motion to suppress the identification of him made by a victim of the home invasion after being presented with a police-arranged photo array. The People were obliged in the first instance to show "the reasonableness of the police conduct and the lack of any undue suggestiveness in [the] pretrial identification procedure," but the ultimate burden rested on defendant to prove "that the procedure was unduly suggestive" (People v. Chipp, 75 N.Y.2d 327, 335, 553 N.Y.S.2d 72, 552 N.E.2d 608 [1990], cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70 [1990] ;

47 N.Y.S.3d 809

see People v. Al Haideri, 141 A.D.3d 742, 743, 36 N.Y.S.3d 244 [2016], lv. denied ––– N.Y.3d ––––, 45 N.Y.S.3d 377, 68 N.E.3d 106 [2016] ). The People met their initial burden and, in response, defendant pointed out that he is Hispanic, but that the other men in the photo array were white. A review of the photo array—which is in black and white—reveals five other men who appear to be around the same age as defendant, and have similar hair and skin tones that only modestly vary from defendant's own. County Court was accordingly free to conclude "that the characteristics of the men in the photographs, including their skin tone, were sufficiently similar and did not create a ‘substantial likelihood’ that defendant would be singled out for identification by the victim" (People v. Al Haideri, 141 A.D.3d at 743, 36 N.Y.S.3d 244, quoting People v. Chipp, 75 N.Y.2d at 336, 553 N.Y.S.2d 72, 552 N.E.2d 608 ; see People v. Matthews, 101 A.D.3d 1363, 1364, 956 N.Y.S.2d 317 [2012], lvs. denied 20 N.Y.3d 1101, 965 N.Y.S.2d 797, 988 N.E.2d 535 [2013], 20 N.Y.3d 1104, 965 N.Y.S.2d 801, 988 N.E.2d 539 [2013] ). Moreover, while the background and lighting used in the photographs varied somewhat, "the differences were not of such quality as would taint the array" (People v. Boria, 279 A.D.2d 585, 586, 719 N.Y.S.2d 682 [2001], lv. denied 96 N.Y.2d 781, 725 N.Y.S.2d 645, 749 N.E.2d 214 [2001] ; see

148 A.D.3d 1215

People v. Butler, 140 A.D.3d 1610, 1611, 33 N.Y.S.3d 602 [2016], lvs. denied 28 N.Y.3d 969, 43 N.Y.S.3d 257, 66 N.E.3d 3 [2016] 28 N.Y.3d 970, 43 N.Y.S.3d 258, 66 N.E.3d 4 [2016]; People v. Sullivan, 300 A.D.2d 689, 690, 752 N.Y.S.2d 733 [2002], lv. denied 100 N.Y.2d 587, 764 N.Y.S.2d 398, 796 N.E.2d 490 [2003] ). We cannot, as a result, say that County Court erred in denying the motion to suppress.

Defendant further contends that the convictions relating to the two robberies—in...