PEOPLE v. FORBES (2018)

Judgment, Supreme Court, New York County (Maxwell Wiley, J. at severance motion;  Patricia M. Nuñez, J. at jury trial and sentencing), rendered September 15, 2015, convicting defendant of burglary in the third degree and four counts of grand larceny in the fourth degree, and sentencing him, as a persistent felony offender, to concurrent terms of 15 years to life, unanimously affirmed.

Defendant's severance motion was properly denied.  The counts relating to the two incidents, both involving theft, were properly joined pursuant to CPL 200.20(2)(b) based on mutually admissible evidence to demonstrate identity, which was neither expressly conceded nor “clearly established” (see People v. Condon, 26 N.Y.2d 139, 142, 309 N.Y.S.2d 152, 257 N.E.2d 615 [1970] ).  Although the two crimes did not involve a unique modus operandi, the surveillance videotapes of the two incidents nevertheless provided strong evidence that they were committed by the same person and were highly probative of defendant's identity under the circumstances of the case (see e.g. People v. Laverpool, 267 A.D.2d 93, 94, 700 N.Y.S.2d 139 [1st Dept. 1999], lv denied 94 N.Y.2d 904, 707 N.Y.S.2d 389, 728 N.E.2d 988 [2000] ).  Furthermore, as the court implicitly determined, the probative value outweighed any potential for prejudice, and the court provided suitable limiting instructions.  In any event, the counts were also properly joined as legally similar pursuant to CPL 200.20(2)(c), and defendant failed to make a sufficient showing for a discretionary severance pursuant to CPL 200.20(3).  Finally, we conclude that any error in denying severance was harmless in light of the overwhelming evidence of defendant's guilt as to both incidents (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ).

Still photographs from a restaurant surveillance videotape, showing defendant present in the restaurant approximately two months before one of the charged crimes was committed there, were relevant to prove that defendant was familiar with the layout of the restaurant and that he did not mistakenly believe he was permitted to enter the “employees only” basement.  However, the accompanying testimony of the restaurant owner, strongly suggesting that defendant had committed a crime on the earlier occasion, should have been excluded.  Nevertheless, this brief and limited testimony, the prejudicial effect of which was minimized by the court's appropriate limiting instructions, was similarly harmless.

The court providently exercised its discretion in sentencing defendant as a persistent felony offender, particularly in light of his very extensive criminal record.