People v. Napolitano , 482 N.Y.S.2d 753 ( 1984 )

—Judgment of the Supreme Court, New York County (Ernst Rosenberger, J.), rendered October 18, 1982, convicting defendant of one count of grand larceny in the second degree and one count of grand larceny in the third degree and imposing concurrent sentences, affirmed.

We find that the denial by the trial court of defendant’s pretrial motion to sever the two counts of the indictment charging grand larceny in the second and third degrees (CPL 200.20, subd 3) did not constitute an abuse of discretion as a matter of law. As indicated in the dissent of our brother Sullivan, which fairly sets forth the facts, these two different criminal transactions were joinable pursuant to CPL 200.20 (subd 2, par [c]). However, it was the burden of the movant, pursuant to subdivision 3, to persuade the court that the severance should be granted “in the interest of justice and for good cause shown”. It was incumbent upon defendant to articulate in concrete terms why he would be unduly prejudiced by the failure to sever, and this he did not do. The trial court exercised its discretion and denied the motion. That decision is reviewable on appeal to this court only to the extent that there has been an abuse of that discretion as a matter of law (see People v Lane, 56 NY2d 1, 7, 8, 10). This record does not reveal such an abuse.

The substance of defendant’s position on appeal, and of both dissents, is that the joinder of the second larceny (grand larceny in the third degree), which arose out of the police “integrity test” inspired by the first larceny (grand larceny in the second degree), was so inherently prejudicial as to deprive defendant of a fair trial, by consequence of which the trial court’s denial of the severance motion was an abuse of discretion, regardless of the inartful manner in which the issue was articulated.

The issue is troublesome. But it is troublesome almost invariably when several different though similar criminal transactions are joined for trial. The cumulative effect of the admission of evidence of separate crimes, no matter how carefully managed by the trial court and no matter the consummate artistry with which a jury is charged, may well have an effect. Nevertheless, the Legislature has seen fit to permit joinder even though based upon different criminal transactions provided that the offenses are defined by the same or similar statutory provisions and consequently are the same or similar in law (CPL 200.20, subd 2, par [c]). Such joinder has been repeatedly upheld as constitutional (see People v Hetherington, 27 NY2d 242, 245-246, and cases cited therein).

The issue is whether the defendant has been deprived of a fair trial; specifically, was the second larceny so different in nature from the first and of so much greater impact because it arose out of an “integrity test” that it tainted the jury’s consideration and resulted in a conviction which might not otherwise have come to pass. We think not. Certainly not with respect to the “integrity test” larceny, for the evidence of guilt was overwhelming and there can be little argument otherwise. More to the point, we think the utterly conclusive proof of the second larceny did not taint the first, for even here, the strength of the specific evidence is more than sufficient for the jury to have found a solid case for conviction. What began as a complaint “which was largely uncorroborated and depended upon the credibility of a complainant whose account, at least in some respects, was bizarre” was immeasurably strengthened by the cumulative acts of the defendant himself in returning to the complainant’s apartment several times on flimsy and contrived excuses, but obviously for the purpose of ascertaining whether there were more funds available for taking, and culminating in a preposterous situation in which the defendant handcuffed the complainant as a burglar in his own apartment.

Finally, it is not inappropriate to note that the crimes were so interrelated that in all probability evidence of one would inexorably have been admissible in the other.

Given the circumstances before us we find no deprivation of due process and no abuse of the trial court’s discretion. Concur — Ross, Bloom and Alexander, JJ. Kupferman, J. P., concurs in part and dissents in part, and Sullivan, J., dissents in the following memoranda.