Opinion
July 12, 1989
Appeal from the Supreme Court, Erie County, Doyle, J.
Present — Callahan, J.P., Doerr, Boomer, Green and Davis, JJ.
Judgment unanimously affirmed. Memorandum: The trial court properly precluded defendant from introducing evidence of three other uncharged sex crimes committed in the Delaware Park area on dates when defendant could not have committed them. These uncharged crimes were neither unique nor sufficiently similar to the crimes charged in the indictment to support an inference that the same individual was responsible for all the crimes. "[E]vidence tending to establish that a defendant did not commit uncharged crimes is, because of its irrelevancy, similarly inadmissible as evidence-in-chief to establish that the defendant did not commit the charged crime" (People v Johnson, 47 N.Y.2d 785, 786, cert denied 444 U.S. 857; see also, People v Lawson, 71 N.Y.2d 950, 952-953). Testimony of other victims concerning other crimes committed in a different manner and on different dates has no probative value in determining whether this defendant committed the crimes charged in the indictment (People v Johnson, 62 A.D.2d 555, 559, affd 47 N.Y.2d 785, supra). Defendant's remaining claims lack merit. The court did not abuse its discretion in denying defendant's motion for severance because the crimes charged in the indictment were "the same or similar in law" (CPL 200.20 [c]; People v Jenkins, 50 N.Y.2d 981; People v Pierce, 141 A.D.2d 864, 865, lv denied 72 N.Y.2d 923) and there was no substantial difference with respect to the quantum of the People's proof separately presented for each incident (see, People v Mack, 111 A.D.2d 186, 188, lv denied 66 N.Y.2d 616). Under these circumstances, the possibility that the jury might aggregate the evidence relating to each incident was purely speculative (see, People v Lane, 56 N.Y.2d 1; People v Casiano, 138 A.D.2d 892, 894, lv denied 72 N.Y.2d 857; People v Andrews, 109 A.D.2d 939, 942-943; People v Napolitano, 106 A.D.2d 304, affd 66 N.Y.2d 852; People v Hoke, 96 A.D.2d 677). The record belies defendant's claim that the lineup was unduly suggestive. Each participant fairly represented defendant's physical characteristics (see, People v Burns, 138 A.D.2d 614, 615, lv denied 71 N.Y.2d 1024; People v Mason, 123 A.D.2d 720, lv denied 69 N.Y.2d 714) and defense counsel did not object to the lineup composition or procedure. Finally, on this record defendant's convictions are not contrary to the weight of the evidence (see, People v Bleakley, 69 N.Y.2d 490, 495) and there is no reason to reverse defendant's convictions in the interest of justice.