

People v Spalding (2014 NY Slip Op 07094)





People v Spalding


2014 NY Slip Op 07094


Decided on October 21, 2014


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on October 21, 2014

Tom, J.P., Renwick, Moskowitz, Richter, Kapnick, JJ.


13250 4293/10

[*1] The People of the State of New York, Respondent,
v Shana Spalding, Defendant-Appellant.


Steven Banks, The Legal Aid Society, New York (Denise Fabiano of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Luis Morales of counsel), for respondent.

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 7 years, resulting in a new aggregate term of 7 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).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: OCTOBER 21, 2014
CLERK


