        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

535
KA 12-00840
PRESENT: SCUDDER, P.J., SMITH, SCONIERS, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MARIO CLARK, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN N. MCDERMOTT OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MARIO CLARK, DEFENDANT-APPELLANT PRO SE.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Onondaga County
(John J. Brunetti, A.J.), rendered February 24, 2012. The judgment
convicted defendant, upon a jury verdict, of burglary in the second
degree (two counts) and robbery in the third degree (two counts) and
upon a plea of guilty, of burglary in the second degree and robbery in
the third degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of two counts each of burglary in the second
degree (Penal Law § 140.25 [2]) and robbery in the third degree
(§ 160.05) and convicting him upon his plea of guilty of one count
each of burglary in the second degree (§ 140.25 [2]) and robbery in
the third degree (§ 160.05). Contrary to defendant’s contention in
his main brief, viewing the evidence in light of the elements of the
crimes as charged to the jury (see People v Danielson, 9 NY3d 342,
349), we conclude that the verdict is not against the weight of the
evidence (see generally People v Bleakley, 69 NY2d 490, 495). We
further reject defendant’s contention in his main brief that Supreme
Court erred in refusing to sever the counts of the indictment relating
to a burglary and robbery that occurred in May 2011 from those counts
relating to a burglary and robbery that occurred in February 2011.
“Where counts of an indictment are properly joined because ‘either
proof of the first offense would be material and admissible as
evidence in chief upon a trial of the second, or proof of the second
would be material and admissible as evidence in chief upon a trial of
the first’ (CPL 200.20 [2] [b]), . . . the trial court has no
discretion to sever counts pursuant to CPL 200.20 (3)” (People v
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                                                         KA 12-00840

Griffin, 111 AD3d 1413, 1414, lv denied 23 NY3d 1037; see People v
Webb, 60 AD3d 1291, 1293, lv denied 12 NY3d 930). Here, the evidence
from one incident was admissible to establish defendant’s intent with
respect to the other (see People v Griffin, 147 AD2d 897, 897, lv
denied 73 NY2d 977; see generally People v Garcia, 278 AD2d 147, 147,
lv denied 96 NY2d 759). We therefore conclude that the offenses were
properly joined pursuant to CPL 200.20 (2) (b), “and thus the court
lacked statutory authority to grant” the request for severance (People
v Murphy, 28 AD3d 1096, 1097, lv denied 7 NY3d 759; see Griffin, 111
AD3d at 1414).

     Contrary to defendant’s contention in his main and pro se
supplemental briefs, he was not denied his right to be present at a
material stage of trial based on the fact that he was not present when
the court and the attorneys prepared a response to a note from the
jury requesting the read-back of trial testimony. Defendant’s “right
to be present during a read-back of testimony to the jury . . . did
not include the right of defendant to be present at a colloquy between
his attorney and the Trial [Justice] which took place outside the
jury’s presence and involved only the sufficiency of the read-back”
(People v Rodriguez, 76 NY2d 918, 921; see People v Afrika, 13 AD3d
1218, 1222, lv denied 4 NY3d 827). Contrary to defendant’s further
contention in his main brief, the sentence is not unduly harsh or
severe.

     Defendant’s remaining contentions are raised in his pro se
supplemental brief, and none has merit. We reject his contention that
the People were required to move to consolidate the charges related to
the February 2011 incident with the charges related to the May 2011
incident. Inasmuch as, as previously noted herein, the offenses were
initially properly joined in a single indictment pursuant to CPL
200.20 (2) (b), the statutory requirements concerning the
consolidation of multiple indictments are not applicable here (see
generally CPL 200.20 [4]; People v Lane, 56 NY2d 1, 7).

     Defendant further contends that the grand jury proceedings were
defective because the prosecutor presented the grand jury with
evidence of criminal conduct that was not alleged in the felony
complaint. We reject that contention. It is well settled that “[t]he
offense or offenses for which a grand jury may indict a person in any
particular case are not limited to that or those which may have been
designated, at the commencement of the grand jury proceeding, to be
the subject of the inquiry” (CPL 190.65 [2]). Contrary to defendant’s
further contention, the grand jury proceedings were not rendered
defective when defendant sought to exercise his statutory right to
appear after a true bill had been voted but before the indictment had
been filed, and the prosecutor reopened the proceedings before the
same grand jury to allow defendant’s testimony. “If the [g]rand
[j]ury has voted favorably on the charges, the District Attorney is at
liberty to resubmit the matter to the same [g]rand [j]ury, without the
necessity of recalling witnesses who have previously testified”
(People v Cade, 74 NY2d 410, 415; see People v Young, 138 AD2d 764,
764-765, lv denied 72 NY2d 868). We likewise reject defendant’s
contention that during his grand jury testimony the prosecutor
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                                                         KA 12-00840

violated defendant’s privilege against self-incrimination. “By
waiving the right to immunity, a testifying defendant before the
[g]rand [j]ury necessarily gives up the Fifth Amendment privilege
against self-incrimination” (People v Smith, 87 NY2d 715, 719).
Finally, defendant received adequate notice of the grand jury
proceedings, inasmuch as “the notice provisions of CPL 190.50 (5) do
not obligate the People to provide notice of separate charges
presented to a grand jury which are not included in a pending felony
complaint” (People v Thomas, 27 AD3d 292, 293, lv denied 6 NY3d 898;
see People v McNamara, 99 AD3d 1248, 1249, lv denied 21 NY3d 913;
People v Knight, 1 AD3d 379, 380, lv denied 1 NY3d 630).




Entered:   May 8, 2015                         Frances E. Cafarell
                                               Clerk of the Court
