THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. ANTHONY GRIFFIN DEFENDANT APPELLANT (2013)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice and on the law by reversing those parts convicting defendant of criminal possession of a weapon in the third degree and intimidating a victim or witness in the second degree and dismissing counts 8 through 10 of the indictment, and as modified the judgment is affirmed.

Memorandum:  Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, two counts each of burglary in the first degree (Penal Law § 140.30[2], [3] ), intimidating a victim or witness in the second degree (§ 215.16[1], [2] ) and criminal contempt in the second degree (§ 215.50[3] ), three counts of robbery in the second degree (§ 160.10[1], [2] [a];  [3] ), and one count each of robbery in the first degree (§ 160.15[3] ), assault in the second degree (§ 120.05[6] ) and criminal possession of a weapon in the third degree (§ 265.02[1] ).   We reject defendant's contention that County Court erred in denying his motion to sever the counts of the indictment relating to the order of protection and drug possession from the robbery and burglary counts.   Where counts of an indictment are properly joined because “either proof of the first offense would be material and admissible as evidence in chief upon a trial of the second, or proof of the second would be material and admissible as evidence in chief upon a trial of the first” (CPL 200.20 [2][b] ), the trial court has no discretion to sever counts pursuant to CPL 200.20(3) (see People v. Bongarzone, 69 N.Y.2d 892, 895;  People v. Lane, 56 N.Y.2d 1, 7).   Here, the counts were properly joined pursuant to CPL 200.20(2)(b), and thus the court “lacked statutory authority to grant defendant's [severance] motion” (People v. Murphy, 28 AD3d 1096, 1097, lv denied 7 NY3d 760).   Defendant “did not seek to reopen the [Huntley ] hearing based on the trial testimony or move for a mistrial” (People v. Kendrick, 256 A.D.2d 420, 420, lv denied 93 N.Y.2d 900), and he thus failed to preserve for our review his further contention that the court erred in refusing to suppress his statement to the police based on that trial testimony.   We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).

Contrary to defendant's contention, the testimony of the victim concerning the uncharged crimes of rape and sexual assault was admissible “as background material that completed the narrative of the episode,” and the court properly instructed the jury that the testimony was admitted for that limited purpose (People v. Strong, 234 A.D.2d 990, 990, lv denied 89 N.Y.2d 1016;  see also People v. Robinson, 283 A.D.2d 989, 991, lv denied 96 N.Y.2d 906).

We agree with defendant, however, that the conviction of criminal possession of a weapon in the third degree and intimidating a victim or witness in the second degree is not supported by legally sufficient evidence.   Although defendant failed to preserve his contention with respect to those crimes for our review (see People v. Devane, 78 AD3d 1586, 1586–1587, lv denied 16 NY3d 858), we nevertheless exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ), and we modify the judgment accordingly.   With respect to criminal possession of a weapon, the evidence is legally insufficient to establish either that defendant knew that his coconspirator possessed a knife or that he intended to use it unlawfully against another (see Penal Law §§ 265.01[2];  265.02[1];  People v. Smith, 87 AD3d 1169, 1170).   With respect to intimidating a victim or witness, the evidence likewise is legally insufficient to establish that defendant shared his coconspirator's intent to cause physical injury to the victim during the burglary and robbery (see § 215.16[1], [2];  cf.  People v. Boler, 4 AD3d 768, 769, lv denied 2 NY3d 761).   Although defendant preserved for our review his legal insufficiency contention with respect to the remaining crimes, we conclude that it lacks merit (see generally People v. Bleakley, 69 N.Y.2d 490, 495).   Furthermore, viewing the evidence in light of the elements of the remaining crimes as charged to the jury (see People v. Danielson, 9 NY3d 342, 349), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495).

Defendant's challenge to the severity of the sentence lacks merit.   Although defendant is correct that the aggregate maximum term exceeds the 50–year statutory limitation (see Penal Law former § 70.30[1][e][vi] ), the Department of Corrections and Community Supervision will “calculate the aggregate maximum length of imprisonment consistent with the applicable [statutory] limitation” and reduce the maximum term accordingly (People v. Moore, 61 N.Y.2d 575, 578;  see People v. Jurgensen, 288 A.D.2d 937, 938, lv denied 97 N.Y.2d 684).   We have reviewed defendant's remaining contentions and conclude that they are without merit.

Frances E. Cafarell

Clerk of the Court