People v. Gonzalez , 591 N.Y.S.2d 173 ( 1992 )

Judgment, Supreme Court, New York County (Jerome Hornblass, J.), rendered January 8, 1991, convicting defendant, after a jury trial, of four counts of robbery in the first degree, robbery in the third degree, attempted robbery in the third degree, sodomy in the first degree, attempted rape in the first degree, sexual abuse in the first degree, and assault in the second degree, and sentencing him, as a predicate felon, to an aggregate term of 38 to 76 years, unanimously affirmed.

The instant case concerns a twelve-count indictment, involving six separate offenses, which were committed within a period of more than one month, against eight young women, working either alone or with one another in small shops located within a few blocks of one another in Chinatown. Usually the attacker went into the shop before he robbed it in order to look it over, and thereafter would return when the store was empty of customers and produce a large knife, which he used to rob the female Chinese store clerk or clerks of money and sometimes jewelry. On one occasion, the robbery escalated into a sexual assault. Prior to trial, the trial court denied a motion to sever the counts.

Since "[t]his 'over-all pattern’ of criminal conduct was of more than sufficient uniqueness to constitute a distinctive modus operandi”, denial of severance was not error (People v West, 160 AD2d 301, 302, lv denied 76 NY2d 798).

Defendant also argues that the trial court erred when it permitted a police detective to testify pursuant to CPL 60.25 (1) (a) (iii) concerning a prior positive lineup identification of defendant by one victim, who was unable to identify defendant at trial on the basis of present recollection. This contention is without merit in view of that victim’s inability to identify defendant at trial with certainty (People v Cwikla, 46 NY2d 434, 444-445). In any event, any error is harmless in light of the identification testimony given by the first victim’s sister. Concur — Milonas, J. P., Wallach, Asch and Rubin, JJ.