PEOPLE v. PETERKIN (2004)

Defendant appeals from a judgment convicting him following a jury trial of, inter alia, two counts each of burglary in the second degree (Penal Law § 140.25[2] ), grand larceny in the third degree (§ 155.35) and criminal possession of stolen property in the third degree (§ 165.50), and one count each of criminal mischief in the fourth degree (§ 145.00[3] ), unauthorized use of a vehicle in the third degree (§ 165.05[1] ), reckless driving (Vehicle and Traffic Law § 1212), speeding (§ 1180[d] ) and unlicensed operation of a motor vehicle (§ 509[1] ).   He was sentenced as a second violent felony offender to an aggregate term of imprisonment of eight years.

 We reject defendant's contention that County Court abused its discretion in refusing to sever the two burglary counts from the remaining counts.   Here, the two burglaries were joinable under CPL 200.20(2)(c), i.e., they were based upon different criminal transactions but “are defined by the same or similar statutory provisions and consequently are the same or similar in law․” Thus, defendant was entitled to severance only upon a showing that the counts should be severed “in the interest of justice and for good cause shown” (200.20[3] ).   Defendant contended in support of severance only that he did not wish to testify concerning certain counts but wished to testify concerning others, and he “failed to make a ‘convincing showing that [he had] both important testimony to give’ concerning ․ [certain counts] and ‘a genuine need to refrain from testifying’ ” concerning other counts (People v. Owens, 256 A.D.2d 1220, 1221, 685 N.Y.S.2d 145, lv. denied 93 N.Y.2d 877, 880, 689 N.Y.S.2d 439, 442, 711 N.E.2d 653, 656 quoting 200.20[3] [b];  see People v. McKnight, 284 A.D.2d 941, 942, 726 N.Y.S.2d 326, lv. denied 96 N.Y.2d 921, 732 N.Y.S.2d 638, 758 N.E.2d 664).   Thus, we conclude that defendant failed to make the requisite showing of good cause to warrant severance (see generally People v. Cunningham, 110 A.D.2d 708, 487 N.Y.S.2d 609).

 We also reject the contention of defendant that the court abused its discretion in denying his motion to dismiss the indictment in the interest of justice.   Pursuant to CPL 210.40(1), “[a]n indictment or any count thereof may be dismissed in furtherance of justice ․ when ․ such dismissal is required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such indictment or count would constitute or result in injustice.”   Defendant sought dismissal based on his alleged failing health and based on alleged illegal police activity.   He failed, however, to offer any medical proof that he was unable to stand trial, defend himself, or withstand incarceration due to his health problems, and he failed to offer any objective evidence of the alleged illegal police activity.   We conclude on the record before us that the court properly denied defendant's motion (see generally People v. Kennard, 266 A.D.2d 718, 719, 699 N.Y.S.2d 497, lv. denied 94 N.Y.2d 864, 704 N.Y.S.2d 540, 725 N.E.2d 1102;  People v. Anderson, 204 A.D.2d 168, 612 N.Y.S.2d 21, lv. denied 84 N.Y.2d 822, 617 N.Y.S.2d 142, 641 N.E.2d 163).

 Contrary to the further contention of defendant, the court properly denied his suppression motion.   Here, the emergency exception to the warrant requirement applies because the police justifiably believed that they had interrupted a burglary or trespass in progress and that entry into the apartment was necessary to prevent the commission of a crime (see generally People v. Calhoun, 49 N.Y.2d 398, 403, 426 N.Y.S.2d 243, 402 N.E.2d 1145;  People v. Guins, 165 A.D.2d 549, 552, 569 N.Y.S.2d 541, lv. denied 78 N.Y.2d 1076, 577 N.Y.S.2d 239, 583 N.E.2d 951).   In addition, in determining that defendant was not in custody when he made his admissions to the police, the court was entitled to credit the testimony of the police officers that defendant voluntarily accompanied them to the Public Safety Building, was not handcuffed and did not request an attorney (see People v. Diaz, 84 N.Y.2d 839, 840, 616 N.Y.S.2d 900, 640 N.E.2d 1134;  People v. Centano, 76 N.Y.2d 837, 560 N.Y.S.2d 121, 559 N.E.2d 1280;  see generally People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380;  People v. Coleman, 306 A.D.2d 941, 760 N.Y.S.2d 797, lv. denied 1 N.Y.3d 596, 776 N.Y.S.2d 228, 808 N.E.2d 364).   Furthermore, defendant effectively abandoned the soda bottle when he discarded the bottle before the police seized it from the trash (see People v. Weaver, 255 A.D.2d 959, 682 N.Y.S.2d 321, lv. denied 93 N.Y.2d 981, 695 N.Y.S.2d 67, 716 N.E.2d 1112;  People v. Jones, 221 A.D.2d 998, 633 N.Y.S.2d 893, lv. denied 87 N.Y.2d 903, 641 N.Y.S.2d 233, 663 N.E.2d 1263;  People v. Thomas, 203 A.D.2d 96, 609 N.Y.S.2d 614, lv. denied 83 N.Y.2d 972, 616 N.Y.S.2d 25, 639 N.E.2d 765).

 By exercising his right to proceed pro se, defendant waived his further contention that he was denied his right to effective assistance of counsel (see generally People v. Garcia, 69 N.Y.2d 903, 904, 516 N.Y.S.2d 194, 508 N.E.2d 929, rearg. denied 70 N.Y.2d 694, 518 N.Y.S.2d 1030, 512 N.E.2d 556).  “A criminal defendant has no Federal or State constitutional right to hybrid representation [citations omitted].   While the Sixth Amendment and the State Constitution afford a defendant the right to counsel or to self-representation, they do not guarantee a right to both” (People v. Rodriguez, 95 N.Y.2d 497, 501, 719 N.Y.S.2d 208, 741 N.E.2d 882).

 Defendant failed to preserve for our review his contentions that he was denied a fair trial based on alleged prosecutorial misconduct and that the court improperly attempted to compel him to incriminate himself and erred in allowing rebuttal testimony (see CPL 470.05[2] ), and we decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see 470.15[6][a] ).   We have reviewed defendant's remaining contentions and conclude that they are without merit.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: