PEOPLE v. BANKSTON (2009)

Defendant appeals from a judgment convicting him, upon a jury verdict, of one count of robbery in the first degree (Penal Law § 160.15 [4] ) and two counts of robbery in the second degree (§ 160.10[1], [2][b] ).  Contrary to the contention of defendant, the record of the suppression hearing supports County Court's determination that the police had probable cause to arrest him (see People v. Brito, 59 A.D.3d 1000, 872 N.Y.S.2d 621;  see generally People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380).   Defendant failed to preserve for our review his contentions that the court limited his right to present a defense (see generally People v. Angelo, 88 N.Y.2d 217, 222, 644 N.Y.S.2d 460, 666 N.E.2d 1333;  People v. Roman, 60 A.D.3d 1416, 875 N.Y.S.2d 703), and that he was denied a fair trial by prosecutorial misconduct during summation (see People v. Romero, 7 N.Y.3d 911, 828 N.Y.S.2d 274, 861 N.E.2d 89;  People v. Smith, 32 A.D.3d 1291, 1292, 821 N.Y.S.2d 356, lv. denied 8 N.Y.3d 849, 830 N.Y.S.2d 708, 862 N.E.2d 800).   We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).

 Contrary to defendant's further contention, the court did not abuse its discretion in consolidating the indictments.  “[T]he decision to consolidate separate indictments under CPL 200.20 (subd. 4) is committed to the sound discretion of the Trial Judge in light of the circumstances of the individual case, and the decision is reviewable on appeal ․ only to the extent that there has been an abuse of that discretion as a matter of law” (People v. Lane, 56 N.Y.2d 1, 8, 451 N.Y.S.2d 6, 436 N.E.2d 456;  see CPL 200.20[5];  People v. Brown, 254 A.D.2d 781, 782, 680 N.Y.S.2d 328, lv. denied 92 N.Y.2d 1029, 684 N.Y.S.2d 494, 707 N.E.2d 449).   Here, the offenses in the indictments were joinable under CPL 200.20(2)(c), and defendant failed to make the requisite showing of good cause why the indictments should be tried separately, pursuant to CPL 200.20(3).   Defendant did not “establish that there was substantially more proof against him on one set of charges and that it was likely that the jury would be unable to consider separately the proof as it related to each offense” (People v. Rogers, 245 A.D.2d 1041, 1041, 666 N.Y.S.2d 66;  see CPL 200.20[3][a] ), nor did he establish “that he had ‘both important testimony to give concerning one [offense] and a genuine need to refrain from testifying on the other’ ” (Rogers, 245 A.D.2d at 1041, 666 N.Y.S.2d 66, quoting CPL 200.20[3][b];  see Lane, 56 N.Y.2d at 5, 451 N.Y.S.2d 6, 436 N.E.2d 456).

Further, viewing the evidence in light of the elements of the crime as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that the verdict with respect to robbery in the first degree is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   The testimony of the prosecution witnesses was not “ ‘so unworthy of belief as to be incredible as a matter of law’ ” (People v. Woods, 26 A.D.3d 818, 819, 810 N.Y.S.2d 274, lv. denied 7 N.Y.3d 756, 819 N.Y.S.2d 882, 853 N.E.2d 253, 7 N.Y.3d 765, 819 N.Y.S.2d 890, 853 N.E.2d 261), and we see no reason to disturb the jury's resolution of credibility issues (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Finally, we reject defendant's contentions that the indictment was defective (see People ex rel. Shaffer v. Kuhlmann, 173 A.D.2d 1034, 1035, 570 N.Y.S.2d 695, lv. denied 78 N.Y.2d 856, 574 N.Y.S.2d 937, 580 N.E.2d 409;  see generally People v. McMillan, 231 A.D.2d 841, 648 N.Y.S.2d 63, lv. denied 89 N.Y.2d 987, 656 N.Y.S.2d 746, 678 N.E.2d 1362, cert. denied 522 U.S. 830, 118 S.Ct. 95, 139 L.Ed.2d 51), and that the sentence is unduly harsh or severe.

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

MEMORANDUM: