PEOPLE v. BARNETT

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The PEOPLE, etc., respondent, v. Jerome BARNETT, appellant.

Decided: February 18, 2015

WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, ROBERT J. MILLER, and JOSEPH J. MALTESE, JJ. Rachel J. Filasto, White Plains, N.Y., for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (Hae Jin Liu and Laurie G. Sapakoff of counsel), for respondent.

The defendant's contentions that the evidence was legally insufficient to support his convictions of burglary in the third degree, petit larceny, and unauthorized use of a motor vehicle in the third degree are unpreserved for appellate review (see CPL 470.05[2]; People v. Hawkins, 11 NY3d 484, 492–493; People v. Finger, 95 N.Y.2d 894, 895; People v. Santos, 86 N.Y.2d 869, 871; People v. Sudol, 89 AD3d 499, 500; People v. Cortes, 44 AD3d 1068). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt as to those crimes. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v. Danielson, 9 NY3d 342, 349), we nevertheless accord great deference to the opportunity of the trier of fact to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 NY3d 383, 410; People v. Bleakley, 69 N.Y.2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt as to the aforementioned crimes was not against the weight of the evidence (see People v. Romero, 7 NY3d 633). Contrary to the defendant's further contention, the verdict finding him guilty of burglary in the third degree and not guilty of the petit larceny count with respect to the incident underlying the burglary count was not repugnant (see generally People v. Trappier, 87 N.Y.2d 55).

The Supreme Court properly denied the defendant's motion to sever certain counts of the indictment from others. “Separate offenses are joinable in a single indictment and may be tried together when the offenses ․ are defined by the same or similar statutory provisions and consequently are the same or similar in law” (People v. Richardson, 235 A.D.2d 502, 503; see People v. Jenkins, 50 N.Y.2d 981; People v. Allah, 283 A.D.2d 436). The defendant failed to show that he would be unduly prejudiced by the joint trial of those charges, and failed to demonstrate that he had both a strong need to refrain from testifying concerning the charges arising from some incidents, and important testimony to present concerning the other incidents (see People v. Cabrera, 188 A.D.2d 1062, 1063; People v. Telford, 134 A.D.2d 632). Further, there is nothing in the record to support the defendant's claim that he suffered actual prejudice as a result of the denial of his severance motion (see People v. Richardson, 235 A.D.2d at 503). The proof of each crime was separately presented, uncomplicated, and easily segregable in the minds of the jurors, there was no substantial difference in the quantity of proof at trial for each of the crimes, and the court repeatedly instructed the jury to consider each incident separately (see People v. Reyes, 60 AD3d 873; People v. Vernon, 304 A.D.2d 679, 680; People v. Brewer, 269 A.D.2d 538).

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