Opinion
2014-08-7
The PEOPLE of the State of New York, Respondent, v. JOSEPH GARCIA, Defendant–Appellant.
Richard M. Greenberg, Office of the Appellate Defender, New York (Margaret E. Knight of counsel), and Richards Kibbe & Orbe LLP, New York (Maria Lapetina of counsel), for appellant. Joseph Garcia, appellant pro se.
Richard M. Greenberg, Office of the Appellate Defender, New York (Margaret E. Knight of counsel), and Richards Kibbe & Orbe LLP, New York (Maria Lapetina of counsel), for appellant. Joseph Garcia, appellant pro se.
Cyrus R. Vance, Jr., District Attorney, New York (Sheila O'Shea of counsel), for respondent.
Judgment, Supreme Court, New York County (Carol Berkman, J. at severance motion; Charles H. Solomon, J. at suppression hearing; Daniel P. FitzGerald, J. at jury trial and sentencing), rendered January 20, 2010, convicting defendant of burglary in the first and second degrees, robbery in the second degree (two counts), attempted robbery in the second degree and petit larceny, and sentencing him, as a second violent felony offender, to an aggregate term of 37 years, unanimously affirmed.
Defendant failed to establish good cause for a severance under CPL 200.20(3)(a). While there were evidentiary differences between one of the three incidents at issue and the remaining two, there was no material variance in the quality of proof for the separate incidents, and the evidence as to each of the three crimes was presented separately and was readily capable of being segregated in the minds of the jury, as they occurred on different dates and involved entirely different witnesses ( see People v. Ford, 11 N.Y.3d 875, 879, 874 N.Y.S.2d 859, 903 N.E.2d 256 [2008];see also People v. Streitferdt, 169 A.D.2d 171, 176, 572 N.Y.S.2d 893 [1991],lv. denied 78 N.Y.2d 1015, 575 N.Y.S.2d 823, 581 N.E.2d 1069 [1991] ). In any event, defendant has not established that the joinder of the three incidents caused him any prejudice.
The court properly exercised its discretion in instructing the jury that it could consider similarities between two of the crimes on the issue of identification. The crimes had enough distinctive aspects to establish a pattern that was probative of defendant's identity ( see People v. Beam, 57 N.Y.2d 241, 253, 455 N.Y.S.2d 575, 441 N.E.2d 1093 [1982]; People v. Swinton, 87 A.D.3d 491, 493, 928 N.Y.S.2d 693 [1st Dept.2011],lv. denied18 N.Y.3d 862, 938 N.Y.S.2d 869, 962 N.E.2d 294 [2011]). The two burglaries, committed within two days, shared many features that formed a pattern when viewed collectively. Although the crimes were not identical, “[i]t is not necessary that the pattern be ritualistic for it to be considered unique; it is sufficient that it be a pattern which is distinctive” ( Beam, 57 N.Y.2d at 253, 455 N.Y.S.2d 575, 441 N.E.2d 1093).
We perceive no basis for reducing the sentence.
We have considered and rejected defendant's pro se claims. SWEENY, J.P., RENWICK, ANDRIAS, SAXE, KAPNICK, JJ., concur.