PEOPLE v. MARENGO

Defendant was charged in a single indictment with 12 counts of first-degree robbery arising from eight distinctively similar robberies committed in a three-month period against various small commercial establishments in Manhattan. Defendant's claim that the court should have severed the counts for trial is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the robberies were characterized by a sufficiently unique modus operandi (see, People v. Beam, 57 N.Y.2d 241, 251-253) and thus were properly joined pursuant to CPL 200.20(2)(b) (see, People v. Davis, 166 A.D.2d 197; People v. West, 160 A.D.2d 301, lv denied 76 N.Y.2d 798). In any event, the robberies were also properly joined as legally similar pursuant to CPL 200.20(2)(c) and defendant has failed to establish that severance was warranted "in the interest of justice and for good cause shown" (CPL 200.20; People v. Lane, 56 N.Y.2d 1, 7). In these circumstances, counsel's failure to make a severance motion or to object to the court's entirely proper instructions concerning the relationship between the charged incidents did not constitute ineffectiveness (see, People v. Alvarez, 251 A.D.2d 265, lv denied 92 N.Y.2d 980).

The court appropriately exercised its discretion in denying defendant's request for an adverse inference instruction concerning the People's failure to preserve certain 911 tapes since there was no bad faith or lack of diligence on the part of the People and defendant was not prejudiced (People v. Martinez, 71 N.Y.2d 937, 940). The unavailability of the 911 tapes was not prejudicial here since counsel was provided with Sprint reports which counsel used to elicit a claimed discrepancy in a witness's testimony (see, People v. Randolph, 261 A.D.2d 154 lv denied 93 N.Y.2d 1025; People v. Caba, 255 A.D.2d 232 lv denied 93 N.Y.2d 967; People v. Hyde, 172 A.D.2d 305, lv denied 78 N.Y.2d 1077).

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