Opinion
No. 410.
March 6, 2007.
Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered August 3, 2005, convicting defendant, after a jury trial, of robbery in the first degree (two counts), robbery in the second degree (two counts) and criminal possession of stolen property in the fifth degree, and sentencing him, as a second violent felony offender, to an aggregate term of 14 years, unanimously affirmed.
Robert S. Dean, Center for Appellate Litigation, New York (Lisa Lewis of counsel), for appellant.
Robert M. Morgenthau, District Attorney, New York (Louisa Fennell of counsel), for respondent.
Before: Tom, J.P., Sullivan, Williams, Buckley and Kavanagh, JJ.
Defendant did not preserve his argument that the court should have instructed the jury not to consider evidence of his guilt of one of the two separate incidents as evidence of his guilt of the other, and we decline to review it in the interest of justice. Were we to review this claim, we would find it to be without merit, because the court did instruct the jury to reach a separate determination as to each count, and because an instruction against "commingling" of evidence would have been erroneous in this case. The evidence as to each robbery tended to prove the other, because the two robberies shared a pattern that was sufficiently distinctive so as to warrant an inference that they were committed by the same person ( see People v Beam, 57 NY2d 241, 253).