Opinion
KA 01-01669
March 21, 2003.
Appeal from a judgment of Monroe County Court (Marks, J.), entered June 14, 2001, convicting defendant after a jury trial of, inter alia, robbery in the first degree.
EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (SHIRLEY A. GORMAN OF COUNSEL), FOR DEFENDANT-APPELLANT.
HOWARD R. RELIN, DISTRICT ATTORNEY, ROCHESTER (KELLY CHRISTINE WOLFORD OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: GREEN, J.P., PINE, HURLBUTT, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
County Court properly denied defendant's motion to sever counts one and two of the 12-count indictment for trial. Although the offenses charged in the indictment involve four separate incidents, the offenses are "the same or similar in law" (CPL 200.20 [c]) and thus are properly joinable (see generally People v. Lane, 56 N.Y.2d 1, 7). A motion to sever counts joinable under CPL 200.20(2)(c) "is addressed to the sound discretion of the court" (People v. Daymon, 239 A.D.2d 907, 908, lv denied 94 N.Y.2d 821; see People v. Spina, 275 A.D.2d 902, 903, lv denied 95 N.Y.2d 969). The burden on a defendant contending that the court abused its discretion in denying a severance motion is "a substantial one" (People v. Mahboubian, 74 N.Y.2d 174, 183). Here, the evidence presented by the People with respect to each of the four incidents was "straightforward and easily segregated" (Daymon, 239 A.D.2d at 908; see People v. McKnight, 284 A.D.2d 941, 942, lv denied 96 N.Y.2d 921), and defendant failed to meet his burden of establishing that he would be "unduly and genuinely prejudiced by the joint trial of the charges" (People v. Brown, 254 A.D.2d 781, 782, lv denied 92 N.Y.2d 1029; see People v. O'Connor, 242 A.D.2d 908, lv denied 91 N.Y.2d 895). Defendant failed to request an expanded identification charge and thus failed to preserve for our review his contention that the court erred in failing to give such a charge (see People v. Rivera, 259 A.D.2d 637, lv denied 93 N.Y.2d 977; People v. Woods, 206 A.D.2d 901, 902, lv denied 84 N.Y.2d 1040). We decline to exercise our power to address that contention as a matter of discretion in the interest of justice (see CPL 470.15 [a]).