PEOPLE v. COLON

The motion court properly denied defendant's motions to dismiss the indictment and to sever the counts relating to forgery, forged instruments and theft of services ("fare-beating") from the counts relating to attempted murder and related offenses. There was sufficient connection between the two sets of charges that proof of the forgery/fare-beating charges was material and admissible as evidence-in-chief on trial of the attempted murder charges (see People v. Bongarzone, 69 N.Y.2d 892; People v. Esposito, 301 A.D.2d 660; People v. Nolan, 277 A.D.2d 400, lv denied 96 N.Y.2d 786). Since the offenses were properly joinable under CPL 200.20(2)(b), the court lacked statutory authority to sever (CPL 200.20). In any event, defendant's acquittal of the more serious attempted murder charge and related offenses indicates that defendant suffered no prejudice at all from the joinder and demonstrates that the jury was able to segregate the evidence as it related to the various offenses (see People v. Streitferdt, 169 A.D.2d 171, 176, lv denied 78 N.Y.2d 1015). Since the cases were joinable, the prosecutor was entitled to present them to a single grand jury and, when defendant exercised his right to testify, to question defendant about all the crimes the grand jury was considering (People v. Hemmings, 264 A.D.2d 529, lv denied 94 N.Y.2d 863; People v. Edwards, 240 A.D.2d 427, lv denied 90 N.Y.2d 904) . Accordingly, defendant's right against self-incrimination was not violated by the prosecutor's questioning of defendant before the grand jury.

The verdict convicting defendant of second-degree forgery and possession of a forged instrument, relating to a forged Social Security card, was based on legally sufficient evidence and was not against the weight of the evidence. Based upon the evidence, the jury could reasonably infer that defendant possessed the altered card with intent to defraud (see People v. Washington, 299 A.D.2d 286).

However, as the People concede, dismissal of defendant's conviction for criminal possession of a forged instrument under the count relating to the Social Security card is required because defendant was also convicted of forgery based on the same instrument (Penal Law § 170.35).

We perceive no basis for reducing the sentence.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.