PEOPLE v. VAN DUSER (2000)

Defendant appeals from a judgment resentencing him on his conviction of criminal contempt in the first degree (Penal Law § 215.51[b][v] ), harassment in the second degree (Penal Law § 240.26[1] ), and disorderly conduct (Penal Law § 240.20[3] ).   Defendant contends that County Court erred in denying his motion to sever the count of disorderly conduct;  that defendant's arrest violated the Fourth Amendment and that evidence obtained as a product of that arrest should have been suppressed;  that the verdict finding defendant guilty of criminal contempt is against the weight of the evidence;  that the court improperly limited cross-examination of the victim;  and that the court improperly disallowed the testimony of a defense witness.

 The court did not err in denying severance.   The counts were properly joined under CPL 200.20(2)(b), and the court had no discretion to sever them (see, CPL 200.20[3];  People v. Bongarzone, 69 N.Y.2d 892, 895, 515 N.Y.S.2d 227, 507 N.E.2d 1083;  see also, People v. Lane, 56 N.Y.2d 1, 7, 451 N.Y.S.2d 6, 436 N.E.2d 456).   The court properly denied defendant's suppression motion based on its finding that the victim had consented to the entry of the apartment, a finding not challenged by defendant.   In any event, the exclusionary rule does not require suppression of evidence of defendant's commission of a new crime in the presence of the arresting officers (see, People v. Luffman, 233 A.D.2d 726, 729, 650 N.Y.S.2d 354, lv. denied 89 N.Y.2d 943, 655 N.Y.S.2d 894, 678 N.E.2d 507;  United States v. Pryor, 7th Cir., 32 F.3d 1192, 1196;  United States v. Waupekenay, 10th Cir., 973 F.2d 1533, 1537;  United States v. Garcia-Jordan, 5th Cir., 860 F.2d 159, 160-161).   The verdict finding defendant guilty of criminal contempt is not against the weight of the evidence (see, People v. Pizzaro, 272 A.D.2d 344, 707 N.Y.S.2d 894, lv. denied 95 N.Y.2d 837, 713 N.Y.S.2d 144, 735 N.E.2d 424;  People v. Johnson, 261 A.D.2d 557, 692 N.Y.S.2d 82, lv. granted 94 N.Y.2d 824, 702 N.Y.S.2d 594, 724 N.E.2d 386).

We have considered defendant's remaining contentions and conclude that they are without merit.

Judgment unanimously affirmed.

MEMORANDUM: