Opinion
2015-05-20
The PEOPLE, etc., respondent, v. John SCHULTZ, appellant.
Lynn W.L. Fahey, New York, N.Y. (Anna Pervukhin and Rahshanda Sibley of counsel), for appellant, and appellant pro se. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and Nancy Fitzpatrick Talcott of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Anna Pervukhin and Rahshanda Sibley of counsel), for appellant, and appellant pro se. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and Nancy Fitzpatrick Talcott of counsel), for respondent.
MARK C. DILLON, J.P., RUTH C. BALKIN, ROBERT J. MILLER, and JOSEPH J. MALTESE, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Latella, J.), rendered March 12, 2009, convicting him of burglary in the first degree, robbery in the first degree, robbery in the second degree, assault in the second degree (two counts), criminal possession of stolen property in the fifth degree, resisting arrest, and possession of burglar's tools, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, trial counsel's failure to move to reopen the suppression hearing did not deprive him of the effective assistance of counsel ( see People v. Crespo, 117 A.D.3d 1538, 985 N.Y.S.2d 378).
The joinder of both burglaries in a single indictment was proper under CPL 200.20(2)(b), as evidence from the first burglary, which occurred in close spatial and temporal proximity to the second burglary, could be admissible to complete the narrative of the events relating to the second burglary and to provide necessary background information ( see People v. Morris, 21 N.Y.3d 588, 594, 976 N.Y.S.2d 682, 999 N.E.2d 160; People v. Harris, 117 A.D.3d 847, 985 N.Y.S.2d 643). Thus, trial counsel was not ineffective for failing to move for severance of the indictment ( compare People v. Bongarzone, 69 N.Y.2d 892, 895, 515 N.Y.S.2d 227, 507 N.E.2d 1083, and People v. Zinaman, 259 A.D.2d 327, 687 N.Y.S.2d 316, with People v. Hall, 120 A.D.3d 588, 991 N.Y.S.2d 114).
Many of the defendant's claims of prosecutorial misconduct are unpreserved for appellate review ( seeCPL 470.05). In any event, we are satisfied that the defendant was not deprived of a fair trial as a result of the prosecutor's conduct ( see People v. Williams, 8 N.Y.3d 854, 855, 831 N.Y.S.2d 367, 863 N.E.2d 588; People v. McDonald, 79 A.D.3d 771, 772, 911 N.Y.S.2d 908).
The defendant's contention that he was deprived of his right to testify before the grand jury was waived, as he failed to move to dismiss the indictment within five days of his arraignment ( seeCPL 190.50[5][c]; People v. Venable, 7 A.D.3d 647, 776 N.Y.S.2d 497; People v. Obee, 232 A.D.2d 430, 431, 648 N.Y.S.2d 619).
The defendant's contention that he was prejudiced by the use of his arrest photograph at trial is without merit. “An arrest photograph may be admitted into evidence in order to establish that a defendant's appearance was different at the time of the commission of the crime than at trial” ( People v. Ahmr, 22 A.D.3d 593, 594, 804 N.Y.S.2d 331; see People v. Bowels, 220 A.D.2d 605, 606, 632 N.Y.S.2d 620).
The defendant's remaining contentions, including those raised in his pro se supplemental brief, are unpreserved for appellate review and, in any event, without merit.