People v. Washpun

• Court: New York Supreme Court — Appellate Division
• Citation: People v. Washpun, 134 A.D.2d 858, 521 N.Y.S.2d 915 (N.Y. App. Div. 1987)
• Decision Date: 10 November 1987
• Parties: PEOPLE of the State of New York, Respondent, v. Richard WASHPUN, Appellant.

Page 915

521 N.Y.S.2d 915

134 A.D.2d 858

PEOPLE of the State of New York, Respondent, v. Richard WASHPUN, Appellant.

Supreme Court, Appellate Division Fourth Department.

Nov. 10, 1987.

Edward J. Nowak by Howard Broder, Rochester, for appellant.

Howard R. Relin by Loretta Courtney, Rochester, for respondent.

Before DILLON, P.J., and DENMAN, BALIO, LAWTON and DAVIS, JJ.

MEMORANDUM:

On appeal from a conviction of assault in the second degree arising out of his attack upon his former girlfriend, defendant contends that the assault count of the indictment was not properly joined with the other four counts charging separate crimes committed against the same victim; that the court erred in ruling that he could be cross-examined as to certain prior crimes involving the same victim; and that the court improperly restricted defendant's cross-examination of the victim concerning her "jealousy."

The court properly denied defendant's motion to sever the assault count because it had no discretion to sever counts which were properly joined under CPL 200.20(2)(b) (see, People v. Bongarzone, 69 N.Y.2d 892, 895, 515 N.Y.S.2d 227, 507 N.E.2d 1083; People v. Lane, 56 N.Y.2d 1, 7, 451 N.Y.S.2d 6, 436 N.E.2d 456). CPL 200.20(2)(b) provides that two offenses are joinable when they are of such nature that proof of one would be material and admissible as evidence in chief upon a trial of the other. Evidence of other crimes is admissible, among other instances, where it proves motive or demonstrates a common scheme or plan (People v. Molineux, 168 N.Y. 264, 293, 61 N.E. 286). Here, the assault charge was properly joined with the burglary and criminal mischief charges inasmuch as defendant's arrest for the earlier incidents showed a possible motive for the subsequent assault upon the same victim (cf., People v. Roides, 124 A.D.2d 967, 508 N.Y.S.2d 826, lv. denied 69 N.Y.2d 886, 515 N.Y.S.2d 1034, 507 N.E.2d 1104). Moreover, the crimes were properly joinable as part of a common scheme or plan. The fact that all of the charged crimes involved defendant's girlfriend satisfies the requirement that they be similar in character (see, People v. Fiore, 34 N.Y.2d 81, 356 N.Y.S.2d 38, 312 N.E.2d 174) and the fact that defendant's acts were motivated by animosity toward his former girlfriend shows that they were part of a common plan (cf., People v. Fasano, 11 N.Y.2d 436, 444, 230 N.Y.S.2d 689, 184 N.E.2d 289).

The court did not abuse its discretion in ruling that the prosecution could inquire into certain of defendant's prior criminal convictions. Insofar as the acts underlying those convictions involved breaking into the victim's house and acts of violence against her, they were probative of defendant's honesty and integrity and willingness to place his own interest above the interests of society (People v. Sandoval, 34 N.Y.2d 371, 376-377, 357...