Opinion
June 27, 1988
Appeal from the County Court, Nassau County (Lawrence, J.).
Ordered that the judgment is affirmed.
The defendant's conviction is predicated on five distinct robberies occurring during July and August 1984 at five different homes in Lawrence, Long Island. The crimes, which involved 13 victims, were joined in one indictment. Initially, we note that the crimes were "the same or similar in law" (CPL 200.20 [c]) and were consequently properly joinable (see, People v Jenkins, 50 N.Y.2d 981; People v Barksdale, 140 A.D.2d 531; People v Nelson, 133 A.D.2d 470). The defendant argues that the trial court improvidently exercised its discretion in denying his severance application since the trial resulted in the jury's considering together the evidence presented with respect to the five different crimes (CPL 200.20). We find no basis in the record to support the assertion that the defendant suffered actual prejudice as a result of the denial of the severance application. The defendant was identified as the perpetrator of four of the incidents by at least one victim of each crime (see, People v Nelson, supra, at 471; cf., People v Gilliam, 112 A.D.2d 475, lv denied 66 N.Y.2d 919; People v Hoke, 96 A.D.2d 677), and the "`[p]roof of each crime was separately presented, uncomplicated and easily segregable in the jury's mind'" (People v Nelson, supra, at 471, quoting from People v Mack, 111 A.D.2d 186, 188, lv denied 66 N.Y.2d 616). There was no substantial difference in the quantity of proof at trial for the crimes. In fact, the independent evidence of the defendant's guilt of each robbery and burglary was overwhelming (see, People v Nelson, supra). It should be noted that, based on the remarkable similarity in the manner in which these crimes were committed, joinder was also appropriate under CPL 200.20 (2) (b) (see, People v Lane, 56 N.Y.2d 1, 7; People v Clark, 129 A.D.2d 724, 725).
Additionally, the defendant claims that the branch of his omnibus motion which was to suppress physical evidence should have been granted. While we agree with the court's finding that the initial plain-view observation of the defendant's automobile on August 15, 1984, in a Bronx parking lot, and the registration check derived therefrom, was proper (see, Coolidge v New Hampshire, 403 U.S. 443, reh denied 404 U.S. 874), the search of the vehicle's glove compartment and the car's impoundment without a warrant two days later and four days prior to the defendant's arrest was unlawful since the investigating detectives had ample opportunity to secure a warrant. Once the police possessed "a reasonable belief that the vehicle was, in some way, associated with the crime and that a search of the vehicle would `produce the fruits, instrumentalities, contraband or evidence' of the crime" (People v Clark, 45 N.Y.2d 432, 438, rearg denied 45 N.Y.2d 839, quoting from People v Lewis, 26 N.Y.2d 547, 552), they could have conducted a warrantless search and seizure of the vehicle. The detectives could not, however, return to the vehicle two days later and search and seize the vehicle without a warrant (see, 3 LaFave, Search and Seizure § 7.2 [b], at 40-41 [2d ed]). Accordingly, pictures of and testimony concerning the impoundment of the car and the jewelry located therein, later identified by one of the robbery victims, should have been suppressed. Despite the admission of this physical evidence, however, there is no reason to reverse the defendant's conviction since there exists substantial corroborating identification testimony (see, Wong Sun v United States, 371 U.S. 471; People v Arnau, 58 N.Y.2d 27, 32).
Furthermore, that branch of the omnibus motion which was to suppress the defendant's inculpatory statements was properly denied. It is without question that the defendant's right to counsel indelibly attached at the moment he was arrested pursuant to the arrest warrant for the crimes (see, People v Kazmarick, 52 N.Y.2d 322). However, "[a] pending unrelated criminal case upon which an arrest warrant has issued does not bar the police from questioning a suspect when the suspect does not in fact have counsel on the unrelated charge" (People v Kazmarick, supra, at 324; see, People v Ferringer, 120 A.D.2d 101, 106-107; People v Pepe, 114 A.D.2d 383, 384). Accordingly, the defendant's voluntary waiver of his right to counsel permitted the arresting detectives to question him on the unrelated Belkin robbery. "Under these circumstances, where the crimes involved were temporally separated and questioning scrupulously avoided reference to the [unrelated charge, the hearing court] was correct in denying suppression on an intertwined questioning theory" (People v Pepe, supra, at 384). Finally, the defendant's inculpatory statements concerning the Belkin robbery elicited by an informant during a noncustodial telephone conversation and recorded by the police did not violate his indelible right to counsel with respect to the unrelated crime (see, People v Hauswirth, 89 A.D.2d 357, affd 60 N.Y.2d 904; see also, People v Bertolo, 65 N.Y.2d 111; People v Barley, 124 A.D.2d 1021).
We have considered the defendant's remaining contentions and find them to be unpreserved for appellate review or without merit. Brown, J.P., Kunzeman, Rubin and Kooper, JJ., concur.