PEOPLE v. GARDNER (2005)

Judgment, Supreme Court, New York County (Micki A. Scherer, J. on motions;  Edwin Torres, J. at jury trial and sentence), rendered September 23, 2003, convicting defendant of assault in the first degree, criminal possession of a weapon in the second degree (two counts), criminal possession of a weapon in the third degree and reckless endangerment in the first degree (two counts), and sentencing him to an aggregate term of 15 years, unanimously affirmed.

 The motion and trial courts properly exercised their respective discretion in denying defendant's severance motions (see People v. Lane, 56 N.Y.2d 1, 451 N.Y.S.2d 6, 436 N.E.2d 456 [1982];  People v. Streitferdt, 169 A.D.2d 171, 176, 572 N.Y.S.2d 893 [1991], lv. denied 78 N.Y.2d 1015, 575 N.Y.S.2d 823, 581 N.E.2d 1069 [1991] ).   There was no material variance in the quantity of proof presented with respect to the charges relating to the two shooting incidents, and evidence as to the two incidents was presented separately and was capable of being easily segregated in the minds of the jurors.

 The court properly denied defendant's motion to dismiss the indictment made on the ground that the People violated defendant's right to testify before the grand jury.   The parties' submissions established that the People lawfully proceeded without defendant's testimony in accordance with CPL 730.40(3), and that there was no factual issue warranting a hearing.

We have considered and rejected defendant's remaining arguments.