Summary
In People v Elerby, (137 AD2d 708), the Appellate Division, Second Department, upheld the co-defendant, Vincent Eleby's, conviction, finding that the prosecution's failure to disclose a ballistic report did not require preclusion of the witness's testimony and ruling that the imposition of consecutive sentences was within the court's discretion because no two crimes were committed through a single act or commission.
Summary of this case from People v. ElebyOpinion
February 16, 1988
Appeal from the Supreme Court, Kings County (Egitto, J.).
Ordered that the judgment is affirmed.
The hearing court did not err in denying that branch of the defendant's omnibus motion which was to suppress the physical evidence seized from his apartment shortly after his arrest (see, People v Eleby, 137 A.D.2d 707 [decided herewith]).
Further, the trial court did not abuse its discretion in denying the defendant's application for a severance, as the defendant failed to show good cause why a joint trial would prejudice his substantial rights (see, People v McGee, 68 N.Y.2d 328; People v Payne, 35 N.Y.2d 22). Nor was the trial court's decision to permit a ballistics expert to testify on behalf of the prosecution an abuse of discretion (see, People v Kelly, 62 N.Y.2d 516), though the prosecutor did not make his report available to the defense counsel upon demand (see, CPL 240.20 [c]). Where, as here, any potential prejudice arising from noncompliance with the continuing duty of disclosure under CPL 240.20 could be cured by the granting of a continuance, the drastic remedy of preclusion was not warranted (see, CPL 240.70; People v Rosario, 124 A.D.2d 683, lv denied 69 N.Y.2d 833; People v Kehn, 109 A.D.2d 912; People v Benjamin R., 103 A.D.2d 663; People v Napierala, 90 A.D.2d 689).
In addition, the court correctly refused to charge the jury regarding voluntary intoxication, as the evidence of intoxication was so minimal that no reasonable person would have entertained a doubt as to the element of intent on the basis of intoxication (see, People v Perry, 61 N.Y.2d 849; People v Carter, 115 A.D.2d 551).
Finally, the sentencing court did not err in providing that the sentences imposed upon the defendant for each of the three felony murder counts, each of the three attempted murder counts, and each of the assault counts shall run consecutively. Although the offenses may be said to have occurred in the course of a single extended transaction, no two or more of them were committed through a single act or omission, or through an act or omission which itself constituted one of the offenses and also was a material element of another (see, Penal Law § 70.25; People v Brathwaite, 63 N.Y.2d 839; People v Santiago, 136 A.D.2d 660; People v Robbins, 118 A.D.2d 820, lv denied 67 N.Y.2d 949).
We have considered the remaining contention raised by the defendant and find it to be without merit. Lawrence, J.P., Kunzeman, Kooper and Balletta, JJ., concur.