Opinion
(1075) KA 00-01126.
September 28, 2001.
(Appeal from Judgment of Ontario County Court, Henry, Jr., J. — Criminal Possession Forged Instrument, 1st Degree.)
PRESENT: GREEN, J.P., SCUDDER, KEHOE, GORSKI AND LAWTON, JJ.
Judgment unanimously affirmed.
Memorandum:
Contrary to defendant's contention, the evidence is legally sufficient to support the conviction of criminal possession of a forged instrument in the first degree (Penal Law § 170.30), criminal possession of stolen property in the fifth degree (Penal Law § 165.40), and criminal solicitation in the fourth degree (Penal Law § 100.05). County Court properly denied defendant's motion to suppress a stolen and forged check seized from defendant's person, because police at that point had probable cause to arrest defendant ( see, People v. Cox, 177 A.D.2d 963, lv denied 79 N.Y.2d 855; People v. Swystun, 124 A.D.2d 1023, lv denied 69 N.Y.2d 886). The court also properly denied defendant's motion for severance. The court was without discretion to sever the counts because they were properly joined pursuant to CPL 200.20 (2) (b) ( see, People v. Bongarzone, 69 N.Y.2d 892, 895; People v. Lane, 56 N.Y.2d 1, 7). Also, the counts were properly joined under CPL 200.20 (2) (c), and defendant failed to show good cause for their severance ( see, CPL 200.20; People v. Fontanez, 278 A.D.2d 933, 935; see also, People v. Burrows, 280 A.D.2d 132, 134; People v. Owens, 256 A.D.2d 1220, 1221, lv denied 93 N.Y.2d 877, 880). The record does not support the further contention of defendant that he was denied the opportunity to testify before the Grand Jury ( see, People v. Moser, 281 A.D.2d 956). The court properly denied defendant's request to charge criminal possession of a forged instrument in the third degree as a lesser included offense of criminal possession of a forged instrument in the first degree. There is no reasonable view of the evidence that would support a finding that defendant committed the lesser offense but not the greater ( see, People v. Hayes, 133 A.D.2d 934, 935, lv denied 70 N.Y.2d 1006; see also, People v. Pries, 58 A.D.2d 713).