People v. Spalding

121 A.D.3d 536, 993 N.Y.S.2d 894

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 21, 2014
• Docket: 13250 4293/10
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Richard D. Carruthers, J.), rendered February 1, 2012, convicting defendant, after a jury trial, of robbery in the second degree and attempted robbery in the second degree, and sentencing her to an aggregate term of 10 years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the sentence on the second-degree robbery conviction to seven years, resulting in a new aggregate term of seven years, and otherwise affirmed.

The court properly denied defendant’s motion to sever the counts relating to the two incidents. There was no basis for a severance, because the counts were properly joined as a matter of law pursuant to CPL 200.20 (2) (b), in that evidence of each crime was admissible as to the other. While not identical, the two crimes were highly similar and involved a distinctive modus operandi (see e.g. People v Robinson, 300 AD2d 65 [1st Dept 2002], lv denied 99 NY2d 619 [2003]). Additionally, the evidence establishing the two incidents overlapped for reasons independent of modus operandi. When defendant was arrested for the second crime, the police recovered items that circumstantially linked her to the first crime. Furthermore, defendant made interrelated confessions to the two crimes.

In any event, the counts were also properly joined as legally similar pursuant to CPL 200.20 (2) (c), and defendant failed to make a sufficient showing to warrant a discretionary severance under CPL 200.20 (3).

Concur — Tom, J.P, Renwick, Moskowitz, Richter and Kapnick, JJ.