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

933
KA 12-01069
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                               MEMORANDUM AND ORDER

CLARENCE E. SCARVER, ALSO KNOWN AS "C,"
DEFENDANT-APPELLANT.


DAVID J. PAJAK, ALDEN, FOR DEFENDANT-APPELLANT.

CLARENCE E. SCARVER, DEFENDANT-APPELLANT PRO SE.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (NICHOLAS T. TEXIDO
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (M.
William Boller, A.J.), rendered May 16, 2012. The judgment convicted
defendant, upon a jury verdict, of burglary in the first degree (two
counts) and robbery in the first degree.

     It is hereby ORDERED that the judgment so   appealed from is
unanimously modified as a matter of discretion   in the interest of
justice by directing that the sentence imposed   on count three shall
run concurrently with the sentences imposed on   counts one and two and
as modified the judgment is affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
following a jury trial of robbery in the first degree (Penal Law §
160.15 [4]) and two counts of burglary in the first degree (§ 140.30
[2], [4]). The most incriminating evidence at trial was defendant’s
parole identification card, bearing his name and image, which had
fallen out of the pocket of a sweatshirt worn by one of the two
perpetrators and was recovered by the victim of the robbery. We
reject defendant’s contention, advanced in his main and pro se
supplemental briefs, that Supreme Court erred in admitting the parole
identification card in evidence, inasmuch as the card was highly
relevant to the issue of identity and its probative value exceeded its
prejudicial effect (see generally People v Clemmons, 83 AD3d 859, 860,
lv denied 19 NY3d 971; People v Moore [appeal No. 2], 78 AD3d 1658,
1659). We note that the court minimized the prejudicial effect of the
evidence by redacting information on the card to make it less clear
that defendant was a parolee; in fact, as the court observed, one
could look at the redacted card and reasonably believe that it was an
employee identification card showing that defendant worked for the New
York State Department of Correctional Services.
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                                                         KA 12-01069

     Defendant further contends that the court erred in admitting in
evidence the recordings of two telephone calls he made from jail
following his arrest. During the first call, defendant said to an
unknown female, “Tell him [defendant’s father] what happened to my
ID.” Defendant was referring to his claim that his jacket, containing
his parole identification card, had been stolen from his father’s car.
During the second call, an unknown female informed defendant that his
father told the police that his car had not been running for “a long-
ass time,” and in response defendant instructed the female to tell his
father “not to mention” that the car was not running. We reject
defendant’s contention that his own above-referenced statements
constitute inadmissible hearsay. The statements in question were not
offered for the truth of the matters asserted (see generally People v
Tosca, 98 NY2d 660, 661; People v Jones, 92 AD3d 1218, 1218-1219, lv
denied 19 NY3d 962); instead, they were offered to show that defendant
appeared to be fashioning an innocent explanation for the fact that
his parole identification card was found at the crime scene.
Defendant failed to preserve for our review his contention that the
statement made by the unknown female during the second call
constituted inadmissible hearsay. In any event, that statement was
admissible to put defendant’s responding statement into context by
providing “necessary background information to the jury” (People v
Johnson, 40 AD3d 1011, 1012, lv denied 9 NY3d 923; see People v
Sukhdeo, 103 AD3d 673, 674, lv denied 21 NY3d 914).

      Defendant contends that the court abused its discretion in
allowing the People to introduce evidence showing that the
codefendant, while in jail with defendant awaiting trial, used
defendant’s six-digit inmate control number and confidential four-
digit personal identification number to place multiple telephone calls
from jail. According to defendant, that evidence was inadmissible on
relevancy grounds. We reject that contention. The evidence that the
codefendant used defendant’s confidential identification numbers to
make telephone calls from jail was relevant because it “tended to
establish that defendant and the codefendant were acquaintances, since
persons are more likely to commit crimes with acquaintances than
strangers” (People v Berry, 267 AD2d 102, 102, lv denied 95 NY2d 793;
see People v Martinez, 95 AD3d 677, 678, affd 22 NY3d 551). Although
it is possible that defendant may have become acquainted with the
codefendant after the crimes were committed as a result of being
charged jointly and being incarcerated together pending trial, that
possibility “merely goes to the weight to be accorded such evidence,
not its admissibility” (People v Cohens, 81 AD3d 1442, 1444, lv denied
16 NY3d 894; see People v Brown, 2 AD3d 1423, 1424, lv denied 1 NY3d
625).

     We agree with defendant, however, that his sentence is unduly
harsh and severe. The court sentenced defendant to determinate terms
of imprisonment of 25 years plus five years of postrelease supervision
(PRS) on each of the three counts of the indictment. The sentences
for the two counts of burglary in the first degree are directed to run
concurrently with each other but consecutively to the sentence imposed
for robbery in the first degree, resulting in an aggregate sentence of
50 years. We note that the codefendant, who has a more extensive
                                 -3-                           933
                                                         KA 12-01069

criminal history than defendant, was convicted following a separate
trial before a different judge and was sentenced to an aggregate
prison term of 25 years plus a period of PRS. Although we agree with
the People that defendant committed separate crimes and could
therefore lawfully be sentenced consecutively, we conclude as a matter
of discretion in the interest of justice that concurrent sentences are
more appropriate (see generally CPL 470.15 [6] [b]). We therefore
modify the judgment accordingly.

     We have reviewed defendant’s remaining contentions in his main
and pro se supplemental briefs and conclude that none warrants
reversal or modification of the judgment of conviction.




Entered:   October 3, 2014                      Frances E. Cafarell
                                                Clerk of the Court
