PEOPLE v. SPEICHER (2004)

 Defendant appeals from a judgment convicting him following a jury trial of robbery in the second degree (two counts) (Penal Law § 160.10[1], [2] [a] ) and assault in the second degree (§ 120.05[6] ).   County Court properly exercised its discretion in ordering that defendant and codefendant be tried separately (see CPL 200.40[1];  see generally People v. Boatman, 147 A.D.2d 912, 537 N.Y.S.2d 693).   The court ordered separate trials after defendant moved to exclude the statement of codefendant on the ground that admission of codefendant's statement would compromise his Sixth Amendment right to confrontation (see Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476), and codefendant made the same motion with respect to defendant's statement.   The severance was ordered after the jury in the joint trial was sworn but before any witnesses had been called, and the court properly exercised its discretion in discharging that jury, with defendant's consent, and conducting a retrial (see generally People v. Quaranta, 74 A.D.2d 910, 426 N.Y.S.2d 66).   Under the circumstances, we conclude that the retrial did not violate the constitutional and statutory prohibitions against double jeopardy (see People v. Paquette, 31 N.Y.2d 379, 380, 339 N.Y.S.2d 959, 292 N.E.2d 17;  People v. Michallow, 201 A.D.2d 915, 916, 607 N.Y.S.2d 781, lv. denied 83 N.Y.2d 874, 613 N.Y.S.2d 134, 635 N.E.2d 303).   We reject defendant's contention that defense counsel's failure to object to the retrial constituted ineffective assistance of counsel (see People v. Buffin, 244 A.D.2d 925, 926, 665 N.Y.S.2d 242, lv. denied 91 N.Y.2d 924, 670 N.Y.S.2d 406, 693 N.E.2d 753).

The court properly denied the motion of defendant seeking suppression of oral and written statements he made to police officers following his arrest.   The record of the suppression hearing supports the court's conclusions that the arrest was supported by probable cause (see People v. Paden, 158 A.D.2d 554, 555, 551 N.Y.S.2d 325), that defendant was not so intoxicated that he was incapable of knowingly, voluntarily and intelligently waiving his Miranda rights (see People v. Snider, 2 A.D.3d 1452, 1452-1453, 770 N.Y.S.2d 250, lv. denied 1 N.Y.3d 634, 777 N.Y.S.2d 33, 808 N.E.2d 1292) and that defendant did not unequivocally invoke his right to counsel (see People v. Patterson, 295 A.D.2d 966, 743 N.Y.S.2d 352, lv. denied 99 N.Y.2d 538, 752 N.Y.S.2d 599, 782 N.E.2d 577).

 Defendant was not deprived of his right to a fair trial by the allegedly improper comments of the prosecutor in his opening statement (see People v. Jackson, 4 A.D.3d 848, 849, 772 N.Y.S.2d 149).   The court properly admitted in evidence photographs depicting the nature and extent of the victim's injuries (see People v. Law, 273 A.D.2d 897, 898, 710 N.Y.S.2d 223, lv. denied 95 N.Y.2d 965, 722 N.Y.S.2d 483, 745 N.E.2d 403).   Although the court erred in permitting the People to cross-examine defendant with respect to a youthful offender adjudication (see People v. Gray, 84 N.Y.2d 709, 712, 622 N.Y.S.2d 223, 646 N.E.2d 444), that error is harmless (see People v. Stevenson, 266 A.D.2d 68, 698 N.Y.S.2d 466, lv. denied 94 N.Y.2d 953, 710 N.Y.S.2d 10, 731 N.E.2d 627), and the Sandoval ruling was otherwise proper.   We reject defendant's contention that the People's witnesses improperly bolstered the victim's account.   Only one of the statements at issue constituted improper bolstering (cf. People v. Harris, 249 A.D.2d 775, 776, 672 N.Y.S.2d 153), and the court sustained defendant's objection to that statement.   The evidence, viewed in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), is legally sufficient to support the conviction (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Finally, the sentence is not unduly harsh or severe.

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

MEMORANDUM: