People v. Tabor

• Decision Date: 19 August 2011
• Citation: 2011 N.Y. Slip Op. 06315,928 N.Y.S.2d 410,87 A.D.3d 829
• Parties: The PEOPLE of the State of New York, Respondent,v.Dan TABOR, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

87 A.D.3d 829
928 N.Y.S.2d 410
2011 N.Y. Slip Op. 06315

The PEOPLE of the State of New York, Respondent,
v.
Dan TABOR, Defendant–Appellant.

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

Aug. 19, 2011.

[928 N.Y.S.2d 411]

Frank J. Nebush, Jr., Public Defender, Utica (Mark C. Curley of Counsel), for Defendant–Appellant.Scott D. McNamara, District Attorney, Utica (Steven G. Cox of Counsel), for Respondent.PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, LINDLEY, AND GREEN, JJ.MEMORANDUM.

[87 A.D.3d 830] Defendant appeals from a judgment convicting him upon a jury verdict of two counts of assault in the second degree (Penal Law § 120.05 [2] ). The charges arose from an incident in 2004, in which defendant struck a male victim and a female victim with a chain, causing physical injury to both victims. In 2004, defendant was indicted on one count of assault in the second degree for the attack upon the female victim (indictment No. I 2004–483), and that matter proceeded to trial in 2005. Both victims testified at trial, and defendant was convicted as charged. We reversed that judgment of conviction on the ground that County Court erred in summarily denying defendant's request to proceed pro se, and we granted defendant a new trial ( People v. Tabor, 48 A.D.3d 1096, 849 N.Y.S.2d 852).

Prior to commencing the second trial, the People obtained a second indictment in 2008 charging defendant with assault in the second degree with respect to the male victim in the 2004 attack (indictment No. I 2008–104), and the two indictments were joined for trial based on the People's contention that “[b]oth indictments alleged defendant committed the same crime during the same criminal transaction.” Defendant now appeals from the judgment of conviction upon the consolidated indictment.

Defendant failed to preserve for our review his contention that the People were barred by CPL 40.40 from prosecuting him in the second trial for the assault upon the male victim because the two assaults were joinable offenses and, when the trial commenced on the first indictment, the People had sufficient evidence to support a conviction of that assault ( see People v. Prescott, 104 A.D.2d 610, 611, 479 N.Y.S.2d 383, affd. 66 N.Y.2d 216, 495 N.Y.S.2d 955, 486 N.E.2d 813, cert. denied 475 U.S. 1150, 106 S.Ct. 1804, 90 L.Ed.2d 349; see generally People v. Biggs, 1 N.Y.3d 225, 771 N.Y.S.2d 49, 803 N.E.2d 370). We exercise our power to review that contention as a matter of discretion in...