M E M O R A N D U M
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS: CRIMINAL TERM: PART K-25
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THE PEOPLE OF THE STATE OF NEW YORK
:
BY: KATZ, J.
:
:
-against-
:
DATED: Feb. 8, 2000 :
:
MICHAEL HICKSON
:
Ind. No.: 2744/98
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The defendant, Michael Hickson, charged with Burglary in the Second Degree (2 counts), Petty Larceny (2 counts), Criminal Trespass in the Second Degree (2 counts), Criminal Possession of Stolen Property in the Fifth Degree, Assault in the Second Degree, Assault in the Third Degree and Grand Larceny in the Third Degree, moves at the start of trial to sever the indictment, alleging that he would be prejudiced by the jury hearing the facts of two separate and distinct burglaries, one occurring on or about July 29 and July 30, 1998, and the other on August 4, 1998.
This Court finds that the motion of the defendant must be denied.
Where offenses are properly joined pursuant to C.P.L. '200.20(2)(c), as is the case before this Court, C.P.L. '200.20(3) permits severance under the following circumstances:
AIn any case where two or more offenses or groups of offenses charged in an indictment are based upon different criminal transactions, and where their joinability rest solely upon the fact that such offenses, or as the case may be at least one offense of each group, are the same or similar in law, as prescribed in paragraph (c) of subdivision two, the court, in the interest of justice and for good cause shown, may, upon application of either a defendant or the people, in its discretion, order that any such offenses be tried separately from the other or others thereof.@ (Emphasis supplied.)
The burden is upon the defendant to show that Athe interest of justice and for good cause shown,@ warrant the severance. See, People v. Lane, 56 N.Y.2d 1 (1989).
Before 1984, no statutory criteria was set forth as to what constituted Ainterest of justice and good cause shown@ with respect to severance. In 1984, the Legislature amended C.P.L. '200.20(3) to set forth two grounds that constitute Agood cause@. One of these grounds, set forth in C.P.L. '200.20(3)(a), is that there exists A[s]ubstantially more proof on one or more such joinable offenses than on others, and there is a substantial likelihood that the jury would be unable to consider separately the proof as it relates to each offense.@ It is this ground that the defendant argues as the sole basis for severance.
The defendant alleges that the People have substantial proof against him with respect to the burglary of August 4, 1998 because the People have his fingerprint found inside the burglarized home, the victim identified items as his in the defendant's possession, and the defendant was tackled as he left the premises, but characterizes the incident of July 29-30 as one with Alittle proof@ because the District Attorney has only the defendant's fingerprint from inside the burglarized premises.
The People do not disagree with the defendant that the August 4, 1998 case is based on substantial proof, though they state they do not have fingerprint evidence with respect to that incident. However, the People disagree with the defendant that the burglary of July 29-30 is based upon Alittle proof@. The People allege that
they have three fingerprints of the defendant, one of which was found inside the burglarized house, and add that the defendant is not known to the burglary victim. It is also alleged that the victim never allowed the defendant into his home.
This Court finds the proof with respect to each burglary is substantial.
In addition to it not appearing that there is substantially more proof of the defendant's guilt with respect to one burglary than the other, it also does not appear that the jury would have any difficulty in separating the proof with respect to each of the offenses. See, People v. Sylvester, 247 A.D.2d 886 (4th Dept. 1998); People v. Daymon, 239 A.D.2d 907 (4th Dept. 1997); People v. Burnett, 228 A.D. 2d 788 (3rd Dept. 1996); People v. Jarvis, 215 A.D.2d 588 (2nd Dept. 1995); People v. McDougald, 155 A.D.2d 867 (4th Dept. 1989); People v. Casiano, 138 A.D.2d 892 (3rd Dept. 1988); People v. Shelby, 111 A.D.2d 1038 (3rd Dept. 1985). This Court finds that the defendant would not be prejudiced, good cause has not been shown, and the interests of justice do not require, a severance.
Additionally, the Court finds that the motion is untimely. A severance motion under C.P.L. '255.10(1)(g) and 255.20(1)(3) ordinarily must be made within 45 days of arraignment on the indictment. See, People v. Kehn, 109 A.D.2d 912 (3rd Dept. 1985). Here, the motion was made more than one year after the defendant was arraigned on the indictment.
The defendant has offered no excuse for not making the motion timely, nor has he offered one for waiting to make it until after the trial has commenced, especially since the facts upon which the motion was based were known, or should have been known, to him at an earlier time. See, People v. Bornholdt, 33 N.Y.2d 75 (1973).
Order entered accordingly.
The Clerk of the Court is directed to forward copies of this decision to the office of the District Attorney and to the attorney for the defendant.
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STANLEY B. KATZ, J.S.C.