Opinion
July 15, 1994
Appeal from the Oswego County Court, Auser, J.
Present — Green, J.P., Balio, Fallon, Callahan and Davis, JJ.
Judgment unanimously affirmed. Memorandum: On appeal, after a joint trial, from judgments convicting them of burglary in the third degree, possession of burglar's tools, and petit larceny, defendants contend that the evidence is legally insufficient to prove beyond a reasonable doubt that they constructively possessed burglar's tools. We disagree. We conclude that the evidence in this wholly circumstantial evidence case, viewed in the light most favorable to the People, excludes to a moral certainty every reasonable hypothesis but that of guilt and is inconsistent with innocence (see, People v. Ford, 66 N.Y.2d 428, 441-442; cf., People v. Orta, 184 A.D.2d 1052, 1053). Additionally, we are satisfied that the verdict is not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495).
County Court erred in admitting the Tops' Market grocery receipt into evidence (see, People v. Alvino, 71 N.Y.2d 233, 247) but that error is harmless in view of the overwhelming evidence of defendants' guilt. There is no significant probability that the jury would have acquitted defendants but for that error (see, People v. Crimmins, 36 N.Y.2d 230, 242).
Defendants failed to preserve for review the contention that the prosecutor engaged in misconduct that deprived defendants of a fair trial (see, CPL 470.05). In any event, that contention lacks merit (see, People v. Galloway, 54 N.Y.2d 396, 401; People v. Braun, 199 A.D.2d 993, 994; People v. Vega, 183 A.D.2d 864, 865, lv denied 80 N.Y.2d 911; see generally, People v Roopchand, 107 A.D.2d 35, 36-37, affd 65 N.Y.2d 837).
Defendants further contend that the court should have severed their cases for trial. Defendant Larrabee has failed to preserve that issue for review because he did not move for a separate trial (see, CPL 470.05). Defendants Calhoun and Treadwell moved for separate trials on the grounds that each would be prejudiced if a codefendant testified and would be further prejudiced because of the extensive criminal records of the codefendants. We conclude that the court did not abuse its discretion in denying the respective motions. Defendants were charged with the same criminal conduct in connection with the same incident and defendants do not argue that "each defense is in irreconcilable conflict with the other" and "that the conflict alone would lead the jury to infer [each] defendant's guilt" (People v. Mahboubian, 74 N.Y.2d 174, 184; see also, People v. Bornholdt, 33 N.Y.2d 75, 87, cert denied sub nom. Victory v. New York, 416 U.S. 905).
We reject the contentions of defendant Larrabee that the court erred in denying his request to proceed pro se (see, People v Smith, 68 N.Y.2d 737, 738, cert denied 479 U.S. 953) and that he was denied effective assistance of counsel (see, People v Garcia, 75 N.Y.2d 973, 974; People v. Rivera, 71 N.Y.2d 705, 709).
Defendants Calhoun and Treadwell have not preserved for review their contentions that the People were required to produce the radio dispatcher at the suppression hearing (cf., People v Landy, 59 N.Y.2d 369, 374). Neither defendant challenged the reliability of the dispatcher's information either in the motion papers or at the suppression hearing (see, People v. Landy, supra; see also, People v. Lypka, 36 N.Y.2d 210, 213). We decline to review the issue as a matter of discretion in the interest of justice (see, CPL 470.15 [a]).
Lastly, the record reveals that each defendant was properly adjudicated a persistent felony offender (see, CPL 400.20; Penal Law § 70.10; People v. James, 194 A.D.2d 692, 693, lv denied 82 N.Y.2d 720; People v. Drummond, 104 A.D.2d 825).