People v. Matthews

175 A.D.2d 24, 573 N.Y.S.2d 157, 1991 N.Y. App. Div. LEXIS 9548

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 11, 1991
• Status: Published

Opinions

— Judgment, Supreme Court, New York County (Harold Rothwax, J.), rendered August 29, 1988, convicting defendant after a jury trial of seven counts of robbery in the first degree, two counts of sodomy in the first degree, two counts of rape in the first degree, and one count of sexual abuse in the first degree, and sentencing him to a combination of consecutive and concurrent sentences aggregating eighty-seven and one-half to one hundred seventy-five years, which, reduced pursuant to Penal Law § 70.30 (1) (c) (iii), is deemed to aggregate to twenty-five to fifty years, affirmed.

Defendant was convicted after trial of committing seven separate incidents, of robbery and sexual assault. The crimes occurred in city housing projects in upper Manhattan, two in the same building, between September 13 and December 22, 1987. Most of the incidents commenced with the knife point robbery of the victim’s jewelry, and culminated in a sexual assault or abuse in a stairwell or rooftop. Each of the victims identified defendant at a lineup, and all but one identified him at trial.

Defendant was not entitled to separate trials. The motion, made as the trial was about to begin, was untimely. (CPL 255.20 [1], [3]; People v Kehn, 109 AD2d 912.) Moreover, the various counts in the indictment were not subject to a severance for "good cause shown” (CPL 200.20 [3]). The attacks were marked by a sufficiently unique modus operandi to support joinder under CPL 200.20 (2) (b).

We do not find that the prosecutor committed error in summation. As noted, the counts were joinable, and as proof of one attack was admissible as proof of another, argument on that basis was eminently reasonable. Defendant also claims that the prosecutor improperly reminded the jury of his prior conviction for sodomy, but the prosecutor’s argument that defendant’s criminal past showed that defendant would not hesitate to place his self-interest above that of society was not outside the bounds of propriety.

We find without merit defendant’s related claim that the court should not have told the jury that the People urged that the way the crimes were committed suggested that the same person committed them. The court’s comment was accurate, and, since joinder on the basis of modus operandi was appropriate, the comment was equally appropriate. Nor is defendant entitled to a reversal because the court did not read each of the counts to the jury. The law regarding each of the similar charges that differed only as to date and victim was the same, and the court did give the jury appropriate advice to render a separate verdict as to each count.

There is no merit to defendant’s claim that he was entitled to CPL article 710 notice that his parole officer was going to testify that defendant had told him that defendant lived with his godmother at an address in upper Manhattan. The Court of Appeals has reserved deciding the issue whether the nature of the parole officer-parolee relationship is such that even routine, noncustodial questioning must be preceded by Miranda warnings if the questioning is concerned with possible criminal activity. (People v English, 73 NY2d 20, 24.) However, the officer’s testimony was limited to pedigree information which is not subject to the Miranda rule. (People v Rivera, 26 NY2d 304, 309.)

We also find that the trial court did not abuse its discretion at sentencing. Concur — Milonas, Ellerin, Kupferman and Rubin, JJ.