         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1108
KA 08-02633
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, PERADOTTO, AND LINDLEY, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DONNY P. BEATY, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Francis A. Affronti, J.), rendered February 26, 2008. The judgment
convicted defendant, upon a jury verdict, of rape in the first degree,
burglary in the first degree, assault in the second degree, petit
larceny and burglary in the second 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, inter alia, rape in the first degree (Penal
Law § 130.35 [1]) and burglary in the second degree (§ 140.25 [2])
stemming from two incidents involving two victims. Defendant contends
that a police officer deliberately omitted a material fact from his
affidavit supporting the search warrant leading to defendant’s arrest
for the crimes with respect to both incidents and that, based on the
omission, there was no probable cause for the issuance of the warrant.
In particular, defendant contends that the officer set forth in the
supporting affidavit that the victim of the rape described a “puffy
black coat” worn by the perpetrator and that the police obtained
defendant’s permission to seize a black coat in his home, which the
officer described in his affidavit as “black with puffy black solid
squares.” Defendant contends that the officer failed to mention that
the black jacket that was seized by the police officers did not match
the description given by the rape victim. Supreme Court properly
refused to suppress the evidence seized as a result of the search
warrant inasmuch as the remaining information in the search warrant
application, without regard to defendant’s contention concerning the
black jacket, provided probable cause to support the issuance of the
search warrant (see People v Leary, 70 AD3d 1394, 1395, lv denied 14
NY3d 889; People v Tordella, 37 AD3d 500, lv denied 8 NY3d 991; see
also People v Plevy, 52 NY2d 58, 66-67).
                                 -2-                          1108
                                                         KA 08-02633

     Defendant further contends that the photo array procedures were
unduly suggestive because the witness, the neighbor of one of the
victims, viewed two photo arrays on consecutive days, and of the
photographs in each array only defendant’s photograph appeared in
both. We reject that contention. While “the inclusion of a single
suspect’s photograph in successive arrays is not a practice to be
encouraged, it does not per se invalidate the identification
procedures” (People v Gilbert, 295 AD2d 275, 276, lv denied 99 NY2d
558; see People v Dickerson, 66 AD3d 1371, 1372, lv denied 13 NY3d
859; People v Dunlap, 9 AD3d 434, 435, lv denied 3 NY3d 739). Here,
“[t]he record establishes that different photographs of defendant were
used . . . [and] the photographs of defendant appeared in a different
location in each photo array” (Dickerson, 66 AD3d at 1372; see
Dunlap, 9 AD3d at 435). Moreover, because defendant’s hairstyle in
the two photographs was significantly different, the fillers
necessarily had to be different in accordance with the two hairstyles
to avoid the risk that defendant would be singled out for
identification because of his dissimilar appearance to the fillers in
each of the respective photo arrays (see generally People v Chipp, 75
NY2d 327, 336, cert denied 498 US 833). Defendant’s remaining
contention regarding the photo array procedure is not preserved for
our review inasmuch as he did not raise that specific contention in
either his omnibus motion or at the Wade hearing (see People v
Bossett, 45 AD3d 693, 694, lv denied 10 NY3d 860; People v Miller, 43
AD3d 1381, 1382, lv denied 9 NY3d 1036). We decline to exercise our
power to review that contention as a matter of discretion in the
interest of justice (see CPL 470.15 [6] [a]).

     We reject defendant’s further contention that the court erred in
denying his motion to sever the first four counts of the indictment
that involved one victim and charged him with, inter alia, rape in the
first degree, from the fifth count of the indictment charging him with
burglary in the second degree with respect to the other victim. The
offenses were joinable because the identity of defendant was at issue
and his modus operandi was sufficiently unique to make proof of his
commission of the crimes involving one victim probative of his
commission of the crime involving the other victim (see People v
Davis, 156 AD2d 969, lv denied 75 NY2d 867). Once the court exercised
its discretion and properly joined the offenses under CPL 200.20 (2)
(b), the court lacked statutory authority to sever them (see People v
Bongarzone, 69 NY2d 892, 895; People v Webb, 60 AD3d 1291, 1293, lv
denied 12 NY3d 930).

     Defendant contends that the conviction of burglary in the second
degree, the sole crime of which defendant was convicted with respect
to one of the victims, is not supported by legally sufficient evidence
because there was no evidence from which the jury could infer that he
had the intent to commit a crime at the time of the unlawful entry.
We reject that contention as well. “In burglary cases, the
defendant’s intent to commit a crime within the premises may be
inferred beyond a reasonable doubt from the circumstances of the entry
or attempted entry” (People v Gates, 170 AD2d 971, 971-972, lv denied
78 NY2d 922 [internal quotation marks omitted]). Here, defendant’s
intent may be inferred from his unexplained and unauthorized presence
                                 -3-                          1108
                                                         KA 08-02633

at the home of the victim in question, and his ensuing actions, i.e.,
removing the dog from the victim’s bed and lying down next to the
victim in the bed, and running away from the individuals who pursued
him after the victim ran from the house (see People v Hunter, 175 AD2d
615, lv denied 78 NY2d 1077; Gates, 170 AD2d at 972). Viewing the
evidence in light of the elements of that crime as charged to the jury
(see People v Danielson, 9 NY3d 342, 349), we reject defendant’s
further contention that the verdict is against the weight of the
evidence (see generally People v Bleakley, 69 NY2d 490, 495).

     Finally, defendant contends that the court erred in refusing to
charge the jury with respect to one of the victims both that
intoxication may negate the intent element of rape in the first degree
and that attempted rape in the first degree is a lesser included
offense of rape in the first degree. First, “[a]n intoxication charge
is warranted if, viewing the evidence in the light most favorable to
the defendant, ‘there is sufficient evidence of intoxication in the
record for a reasonable person to entertain a doubt as to the element
of intent on that basis’ ” (People v Sirico, 17 NY3d 744, 745).
“[B]are assertions by a defendant concerning his intoxication,
standing alone, are insufficient” to warrant the charge (id.). Here,
the only evidence in the record apart from defendant’s statements to
the police regarding his alleged intoxication on the night of the rape
incident was the victim’s testimony that she smelled alcohol on the
perpetrator’s breath. We thus conclude that defendant failed to
establish his entitlement to the intoxication charge (see People v
Shaw, 8 AD3d 1106, 1107, lv denied 3 NY3d 681). Second, defendant was
not entitled to the lesser included charge of attempted rape because
there is no “reasonable view of the evidence . . . that would support
a finding that defendant committed the lesser included offense but not
the greater” (People v Heide, 84 NY2d 943, 944; see People v
Kinnard, 98 AD2d 845, 846-847, affd 62 NY2d 910).




Entered:   November 10, 2011                   Patricia L. Morgan
                                               Clerk of the Court
