People v. Hayes

284 A.D.2d 202, 726 N.Y.S.2d 545, 2001 N.Y. App. Div. LEXIS 6499

Opinion

—Judgment, Supreme Court, New York County (James Yates, J., on pretrial motion; Charles Tejada, J., at jury trial and sentence), rendered December 16, 1996, convicting defendant of nine counts of burglary in the second degree, and sentencing him, as a second violent felony offender, to three concurrent terms of 7 years, consecutive to six concurrent terms of 6 to 12 years, unanimously affirmed.

The court properly granted the People’s consolidation motion and properly denied defendant’s severance motion. As defendant concedes, the offenses were characterized by a unique modus operandi. Therefore, they were properly joined pursuant to CPL 200.20 (2) (b). Since identity was an issue at trial, the People were entitled to introduce all the evidence available to them in order to prove defendant’s identity beyond a reasonable doubt (People v Allweiss, 48 NY2d 40, 47). Indeed, evidence of the unique modus operandi employed in the nine burglaries was highly probative and cannot be characterized as merely cumulative. Since the offenses were properly joinable under CPL 200.20 (2) (b), the court lacked statutory authority to grant a discretionary severance (People v Bongarzone, 69 NY2d 892, 895). Concur — Sullivan, P. J., Nardelli, Ellerin, Buckley and Marlow, JJ.