Williams, Heinl, Moody & Buschman, P.C., Auburn (Mario J. Gutierrez of Counsel), for Defendant–Appellant. Jon E. Budelmann, District Attorney, Auburn (Brian T. Leeds of Counsel), for Respondent.
PRESENT: CENTRA, J.P., LINDLEY, SCONIERS, WHALEN, AND DeJOSEPH, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him, upon a jury verdict, of two counts each of endangering the welfare of a child (Penal Law § 260.10[1] ), public lewdness (§ 245.00), and burglary in the third degree as a sexually motivated felony (§§ 130.91[1]; 140.20). We reject defendant's contention that County Court erred in denying his motion to sever inasmuch as the offenses “were part of a single continuing incident and were thus properly joinable pursuant to CPL 200.20(2)(a)” (People v. Lee, 275 A.D.2d 995, 997, 714 N.Y.S.2d 177, lv. denied95 N.Y.2d 966, 722 N.Y.S.2d 483, 745 N.E.2d 403). In addition, “[t]he offenses were properly joined because they involved incidents in which proof with respect to one crime would be material and admissible as evidence[-]in[-]chief in a trial with respect to the other crimes” (People v. McAvoy, 70 A.D.3d 1467, 1467, 894 N.Y.S.2d 270, lv. denied14 N.Y.3d 890, 903 N.Y.S.2d 778, 929 N.E.2d 1013; seeCPL 200.20[2][b] ). Inasmuch as “the offenses were properly joinable under CPL 200.20(2)(a) or (b), discretionary severance was not available” (Lee, 275 A.D.2d at 997, 714 N.Y.S.2d 177; seeCPL 200.20[3]; People v. Lane, 56 N.Y.2d 1, 7, 451 N.Y.S.2d 6, 436 N.E.2d 456).
We reject defendant's further contention that the court erred in refusing to suppress the identification testimony of a middle school custodian. Contrary to defendant's contention, the photo array used in the pretrial identification procedure was not unduly suggestive. “There is no requirement that the photograph of a defendant shown as part of a photo array be surrounded by photographs of individuals nearly identical in appearance” (People v. Starks, 91 A.D.3d 975, 975, 937 N.Y.S.2d 323, lv. denied18 N.Y.3d 998, 945 N.Y.S.2d 653, 968 N.E.2d 1009), and, here, we conclude that the alleged variations in appearance between defendant and the other persons depicted in the photo array were “not sufficient to create a substantial likelihood that the defendant would be singled out for identification” (People v. Chipp, 75 N.Y.2d 327, 336, 553 N.Y.S.2d 72, 552 N.E.2d 608, cert. denied498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70; see People v. Hicks, 110 A.D.3d 1488, 1489, 972 N.Y.S.2d 800, lv. denied22 N.Y.3d 1156, 984 N.Y.S.2d 640; People v. Davis, 15 A.D.3d 930, 931, 788 N.Y.S.2d 782, lv. denied5 N.Y.3d 761, 801 N.Y.S.2d 255, 834 N.E.2d 1265). Defendant's further contention that the court erred in failing to suppress the prospective in-court identification testimony of one of the victims is moot, inasmuch as that victim did not identify defendant at trial ( see People v. Townsley, 240 A.D.2d 955, 957, 659 N.Y.S.2d 906, lv. denied90 N.Y.2d 943, 664 N.Y.S.2d 762, 687 N.E.2d 659, reconsideration denied90 N.Y.2d 1014, 666 N.Y.S.2d 110, 688 N.E.2d 1394).
We reject defendant's contention that he was unduly prejudiced by the court's Molineux ruling. Here, the evidence of uncharged crimes and prior bad acts was properly admitted in evidence to demonstrate defendant's motive, intent and identity ( see generally People v. Molineux, 168 N.Y. 264, 293–294, 61 N.E. 286; People v. Wemette, 285 A.D.2d 729, 731, 728 N.Y.S.2d 805, lv. denied97 N.Y.2d 689, 738 N.Y.S.2d 305, 764 N.E.2d 409), and its probative value was not outweighed by its prejudicial effect ( see Wemette, 285 A.D.2d at 731, 728 N.Y.S.2d 805). We note, moreover, that “the court's limiting instruction minimized any prejudice to defendant” (People v. Washington, 122 A.D.3d 1406, 1408, 997 N.Y.S.2d 194). Even assuming, arguendo, that the court erred in admitting the testimony of a victim of a prior incident who was unable to provide an in-court identification of defendant, we conclude that the error is harmless ( see generally People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787).
Contrary to defendant's contention, viewing the evidence in the light most favorable to the People ( see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we conclude that the evidence is legally sufficient to support the conviction of both counts of public lewdness ( see Matter of Jeffrey V., 185 A.D.2d 241, 241–242, 586 N.Y.S.2d 18; Matter of Paul R., 131 A.D.2d 764, 764–765, 516 N.Y.S.2d 790). We further conclude that, viewing the evidence in light of the elements of all of the crimes as charged to the jury ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), the verdict is not against the weight of the evidence ( see People v. Judware, 75 A.D.3d 841, 845, 906 N.Y.S.2d 139, lv. denied15 N.Y.3d 853, 909 N.Y.S.2d 30, 935 N.E.2d 822; see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). We agree with defendant, however, that the sentence is unduly harsh and severe under the circumstances of this case, and we therefore modify the judgment as a matter of discretion in the interest of justice by directing that the sentences imposed on each count of burglary in the third degree as a sexually motivated felony shall run concurrently with respect to each other ( see CPL 470.15[6][b] ).
It is hereby ORDERED that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice by directing that the sentences imposed on each count of burglary in the third degree as a sexually motivated felony shall run concurrently with respect to each other and as modified the judgment is affirmed.