Defendant Peter Dixon has filed on April 4, 2008 a motion pursuant to CPL 200.20 (3) seeking to sever counts in the above-captioned indictment relating to an alleged burglary on June 1, 2007 and an attempted burglary on November 17, 2007, both incidents involving the same apartment building. The People have filed an affirmation dated April 18, 2008 in opposition to the motion.

At the outset defendant concedes that joinder of both incidents is proper under CPL 200.20(2)(c) since the crimes charged are "defined by the same or similar statutory provisions." Defendant, however, requests that this Court exercise its discretion pursuant to CPL 200.20(3) and grant defendant's application for separate trials for each incident.

On June 1, 2007 the complainant left his third-story apartment located at 303 Marcy Avenue, Brooklyn in the morning in a secured condition and returned home that afternoon to find his rear window unlatched from the outside and pried open, and several drawers in the apartment opened and currency missing.

On November 17, 2007 at approximately 5:15 a.m. a member of a neighborhood watch program observed defendant exit a vehicle and eventually enter 303 Marcy Avenue through the unlocked front vestibule door where there was an inner locked door. The eyewitness, who is allegedly familiar with all the tenants of 303 Marcy, did not recognize defendant. He called 911 and defendant was arrested entering his vehicle, which contained various items usable as burglar's tools. The arresting officer observed that the lock cylinder of the inner vestibule door of 303 Marcy had been pried out. [*2]

After being given his Miranda rights at the 90th Precinct defendant admitted that earlier in the summer of 2007 he had burglarized a 3rd floor apartment on Marcy Avenue, although he could not give the specific address. The police then drove defendant to the vicinity and defendant pointed out 303 Marcy as the building he had burglarized that summer. In a memorialized statement defendant said he had entered the building stairwell and went onto the roof and then climbed down the fire escape to the back window of the third floor apartment, which only had a wire holding the window closed. Once inside the apartment he searched around and took currency.

Defendant was charged with Burglary in the Second and Third Degrees, Grand Larceny in the Fourth Degree, Petit Larceny, and Criminal Trespass in the Second Degree for the June 1, 2007 crime. The indictment also charged him with Attempted Burglary in the Second and Third Degrees, Criminal Mischief in the Fourth Degree, Attempted Trespass in the Second Degree and Possession of Burglars Tools for the November.17, 2007 crime.^[FN1]

CPL 200.20(3) provides:

"In any case where two or more offenses or groups of offenses charged in an indictment are based upon different transactions, and where their joinability rests 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. Good cause shall include but not be limited to situations where there is: (a) substantially more proof on one or more such joinable offenses than on the others and there is a substantial likelihood that the jury would be unable to consider separately the proof as it relates to each offense or (b) a convincing showing that a defendant has both important testimony to give concerning one count and a genuine need to refrain from testifying on the other, which satisfies the court that the risk of prejudice is substantial."

In his motion to sever defendant contends that good cause does exist since defendant is charged with two separate break-ins taking place more than five months apart with one a completed crime and the other an attempt. Defendant maintains that there is substantially more proof against him in regard to the second incident than the first in that on November 17th there was an eyewitness and burglars tools recovered. Defendant contends that the only evidence linking him to the June 1st burglary is his alleged written [*3]statement and that a jury may question the voluntariness or truthfulness of the statement,^[FN2] yet convict him for the June 1st burglary merely because he is on trial for an attempted burglary at the same address.

In addition to relying on proper joinder, pursuant to CPL 200.20 (2)(c), the People contend that defendant has failed to allege sufficient good cause to warrant discretionary severance. The People further argue in the alternative that discretionary severance is not authorized because of the following provision of CPL 200.20 (2)(b):

"Even though based upon different criminal transactions, such offenses, or the criminal transactions underlying are of such nature that either proof of the first offense would be material and admissible as evidence in chief upon a trial of the second, or proof of the second would be admissible as evidence in chief upon a trial of the first."

The People maintain that the evidence of the November 17th alleged burglary is admissible as to the June 1st completed burglary under People v Molineux, 168 NY 264 (1901)in that it tends inter alia to prove identity, as well as defendant's use of similar modus operandi and a common scheme or plan. Specifically, the People contend that identification evidence is material to their June 1st case since evidence of the attempted burglary tends to corroborate the confession. Furthermore, on the issue of identity the People maintain that the modus operandi employed by defendant was distinctive in that the same location was burglarized in each transaction and is in close proximity to defendant's own residence, and that similar means were used to enter the building on both occasions, demonstrating a common scheme or plan.

The Court finds that the two transactions were properly joined pursuant to CPL 200.20 (2)(c) and that defendant has not demonstrated good cause for a discretionary severance under either prong of CPL 200.20(3). See, People v Perez, 47 AD3d 409 (1ST Dept 2008).Moreover, the Court agrees with the People that the offenses are properly joinable under CPL 200.20(2)(b) since proof of one offense would be material and admissible as proof of the other offense. While the prosecutor's modus operandi and common scheme arguments are unpersuasive, proof of the first incident is some evidence of defendant's intent for the second, and proof of the second is some evidence of the defendant's identity in the first incident under Molineux. These points tend to undercut, if not eliminate, both the "good cause" alleged by the defense and the Court's discretion to sever under CPL 200.20(3). See, People v Bongarzone, 69 NY2d 892 (1987); People v Lane, 56 NY2d 1 (1982); People v Williams, 155 AD2d 568 (2d Dept 1989). See also, regarding limiting instruction to the trial jury, People v Adames, 42 AD3d 328 (1st Dept 2007), lv denied 9 NY3d 1030 (2008). [*4]

Accordingly, for all the reasons addressed herein, defendant's motion for severance is DENIED in all respects.

IT IS SO ORDERED.

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J.S.C.