Opinion
No. 2011KN026041.
2012-10-18
The PEOPLE of the State of New York v. Cirilo ALEJANDRO a/k/a Alejandro Cirilo, Defendant.
Charles J. Hynes, Brian M. Wagner, for People. Alan Ross, Esq., for Defendant.
Charles J. Hynes, Brian M. Wagner, for People. Alan Ross, Esq., for Defendant.
STEPHEN J. ANTIGNANI, J.
The People, in papers dated March 21, 2012, move for an order consolidating the charges in the above-captioned docket numbers pursuant to CPL Sections 100.45(1), 200.20(2)(b), 200.20(2)(c) and 200.20(4). The defendant Cirilo Alejandro, in papers dated September 17, 2012, opposes that motion. The motion has been administratively assigned to me for decision. For the following reasons the Court grants the People's application.
FACTUAL BACKGROUND
Docket No. 2011KN026041
A misdemeanor complaint was filed under Docket No. 2011KN026041 charging defendant with Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs [Driving while impaired], seeVTL x 1192(1); Operating a Motor Vehicle While under the Influence of Alcohol or Drugs [Driving while intoxicated-per se], seeVTL x 1192(2); Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs [Driving while intoxicated], seeVTL x 1192(3); Unlicensed Operator, seeVTL x 509(1); Leaving the Scene of an Incident Without Reporting, seeVTL x 600(1)(a); and Criminal Mischief in the Fourth Degree, seePenal Law x 145.00(3) relating to an alleged incident occurring on April 2, 2011 at approximately 12:55p.m. at the corner of Turner Place and Coney Island Avenue in Kings County.
Based upon the criminal court complaint and papers in the Court file, it is alleged that the arresting officer who, was on patrol at the time heard the screeching of tires and shortly thereafter saw a 2004 Lincoln Navigator with Massachusetts license plates on top of a collapsed fence next to a scratched outside wall. The vehicle had damage to its front end as well as to the front driver's side door. The car is registered in defendant brother's name. Shortly after hearing the screeching of the tires the arresting officer alleges that he observed defendant running from the location of the damaged car and fence but did he not actually see defendant inside the automobile. Defendant was almost immediately apprehended and the arresting officer observed that defendant was exhibiting signs of intoxication. Defendant agreed to take a Breathalyzer test at the precinct and registered a blood alcohol concentration level of .148.
It is further alleged that an empty beer can was recovered from the front passenger floor of the vehicle in question. Defendant told the arresting officer and a sergeant that he was driving the car at the time of the accident and did strike the fence and wall at 39 Turner Place. Defendant, after being asked if he was driving stated in Spanish through a civilian translator “Yes. Everything on me not my brother”. Defendant also responded “Everything on me. It's my car. Everything”. Defendant told the police that he had started drinking on the morning in question at 9:00a.m. at the base where he was employed as a car service dispatcher and he had consumed eight beers by the time of the accident. Defendant did not remember when he had stopped drinking on the day in question but he had not previously had a drink since six months earlier. Two eyewitnesses made point out identifications but neither witness saw the actual accident but both observed defendant fleeing the scene right after the collision. The superintendent of the building which defendant allegedly hit is the custodian of the fence and estimates that the damage to the fence exceeds $250.00.
Docket No. 2011KN088442
A misdemeanor complaint was filed under Docket No. 2011KN088442 charging defendant with Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs [Driving while impaired], seeVTL x 1192(1); Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs [Driving while intoxicated], seeVTL x 1192(3); Excessive Speed [“Basic rule and maximum limits”], seeVTL x 1180(a); Speed in Excessive of Fifty–Five MPH [“Basic rule and maximum limits”], seeVTL x 1180(b); Reckless Driving, seeVTL x 1212; Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree, seeVTL x 511(2)(a)(iii); Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree, see x VTL 511(1)(a); and Unlicensed Operator, seeVTL x 509(1) relating to an incident allegedly occurring on November 6, 2011 at approximately 7:15 a.m on the Gowanus Expressway at 56th Street in Kings County. Based upon the Criminal Court complaint and papers in the Court file, it is alleged that on the morning of the New York City Marathon defendant was observed driving a 1998 Chevrolet Venture minivan with Massachusetts license plates and belonging to the same brother as in the April 2, 2011 incident. A school safety agent observed defendant changing lanes unsafely on the Expressway causing a car to stop short in order to avoid a collision. The safety agent pursued defendant's vehicle driving at a speed of 80 MPH and he estimated that defendant was going 100 MPH. The agent observed defendant throw a full can of beer out of the driver's side window of the automobile during the chase and also observed defendant slightly ram into the rear of another vehicle. The arresting officer, who was diverting traffic at the time because of the marathon, heard horns blowing and the safety officer waving him over. The arresting officer saw defendant in the driver's seat of the minivan and there was an unidentified person in the front passenger seat. The arresting officer observed that defendant had blood shot watery eyes and the strong smell of alcohol on his breath. In addition defendant's pants were wet as if he had urinated on himself. A portable field breath test was administered at the scene and defendant blew a .235 BAC and a .225 BAC eleven minutes later. Defendant refused to take a Breathalyzer test at the precinct and officers at the intoxicated driver's unit were unable to question defendant because of a language barrier. Defendant failed to produce a driver's license and a computer search found that defendant had a Michigan driver's license and that his privilege of driving in New York State had been suspended four times on April 9, 2011, as well as, four times on June 6, 2011. The abstract of defendant's driving record also indicated that defendant had a June 9, 2011 default conviction for operating out of class, operating without a license and speeding relating to a January 9, 2011 Brooklyn incident.
MOTION TO CONSOLIDATE
The People now move to consolidate the charges in the two dockets, arguing that consolidation is statutorily permissible and the benefits of judicial economy outweigh any prejudice to defendant. Defendant, while acknowledging that joinder of the underlying offenses in this case may in fact be permissible under CPL 200.20(2)(c) opposes the motion, arguing that he will suffer substantial prejudice by consolidation. Moreover defendant states that he will “stipulate” to certain facts which will offset any need for consolidation under the second ground for consolidation offered by the People under CPL 220.20(2)(b).
The law is well-settled that the question of whether to grant consolidation of two accusatory instruments is committed to the sound discretion of the trial court which must “weigh the public interest in avoiding duplicative, lengthy and expensive trials against the defendant's interest in being protected from unfair disadvantage.” People v. Lane, 56 N.Y.2d 1, 8 (1982); see also People v. McCrae, 69 AD3d 759 (2d Dept 2010), lv denied14 NY3d 842 (2010); People v. Dean, 1 AD3d 446 (2d Dept 2003), lv denied1 NY3d 596 (2004); People v. Gonzalez, 229 A.D.2d 398 (2d Dept 1996), lv denied88 N.Y.2d 985 (1996). CPL 200.20 addresses the joinder of offenses and consolidation of indictments, and CPL 100.45(1) makes CPL 200.20 applicable to misdemeanor complaints, informations and prosecutor's informations. See People v. Cherry, 4 Misc.3d 40 (App Term, 2d and 11th Judicial Districts 2004), lv denied2 NY3d 797 (2004)
In their papers the People now rely on subdivisions (2)(b) and (2)(c) of CPL 200.20 in support of their instant consolidation motion. CPL 200.20(2)(b) provides that two offenses are “joinable” where “even based upon different criminal transactions, such offenses, or the criminal transactions underlying them, are of such nature that either proof of the first offense would be material and admissible as evidence in chief upon a trial of the second, or proof of the second would be material and admissible as evidence in chief upon a trial of the first.” In this case the People contend that they will seek to introduce at trial evidence of defendant's April 2, 2011 arrest [2011KN026041] to establish the notice requirement for the Aggravated Unlicenced Operator charges relating to the November 6, 2011 Marathon's day high speed incident. [2011KN088442]. The People argue that by being arrested and arraigned on the April 2, 2011 charges defendant was on actual notice that his license was suspended. This Court agrees with the People that under this legal and factual theory of consolidation the two dockets may be properly joined pursuant to CPL 200.20(2)(b).
Defendant maintains that consolidation under CPL 200.20(2)(b) would no longer exist if defendant stipulates to certain facts and writes: “defendant would so stipulate to such items if the Court denies consolidation and excludes from the trial all evidence of the following issues, (and as a result charge the jury that to convict the defendant they need only find guilt as to the remaining elements of the offenses involved)” (Defendant's papers at 2). Specifically defendant states that in any trial under the Docket No. 2011KN026041 [the earlier April 2, 2011 incident] he would stipulate 1) that the automobile involved was owned by his brother, 2) that his blood alcohol level exceeded the legal limit, including the BAC level alleged in the complaint and 3) anything else yet to be specified by the People, which they can show the Court is evidence in the later Docket No. 2011KN088442, which is material proof of the crimes charged in Docket No. 2011KN026041. Defendant further states that under the latter Docket No.2011KN088442 [the November 6, 2011 incident] he would stipulate again that 1) the vehicle involved was owned by his brother, as well as, 2) that defendant understood he was refusing to take a test that would have measured his blood alcohol level, 3) that defendant knew that his license was suspended and 4) anything else yet to be specified by the People which they can show the Court is evidence in earlier Docket No. 2011KN026041 which is material proof of the crimes charged in the later case.
Defendant fails to acknowledge that his proposed stipulation agreement would also have to be agreed to by the People. There is no indication that the People would so stipulate in this case and there are arguably several reasons why they would not. Therefore without any proof of such agreement between the parties this Court cannot consider the stipulation as a factor to deny consolidation under CPL 200.20(2)(b).
The People also seek consolidation based upon a second statutory ground set forth in CPL 200.20(2)(c) which reads that “Even though based upon different criminal actions, and even though not joinable pursuant to paragraph (b), such offenses are defined by the same or similar statutory provisions and consequently are the same or similar in law”. The People note that both dockets charge defendant with x VTL 1192 and VTL x 509(1). The People therefore correctly contend that joinder of the two dockets is permissible under CPL 200.20(2)(c) and ask that this Court exercise its discretion and grant such joinder on this statutory ground.
It is the People's position that there is a strong public interest in avoiding duplicative, lengthy and expensive trials and that the benefits of judicial economy outweigh any prejudice to defendant. The defendant disagrees and argues that there is little, if any, efficiency to be gained by consolidation and such consolidation would be highly prejudicial to defendant and “would only give the People a distinctly unfair advantage”. (Defendant's papers at 3). Defendant notes that all the witnesses in the two separate cases are different. Moreover defendant maintains that all of the evidence to be adduced is different in that “as stipulated” the first case [the April 2, 2011 incident] essentially involves only proving whether defendant was driving the car when it crashed into the building and fence as opposed to the second case [the November 6, 2011 incident] which defendant argues requires not only proof that defendant was driving a car on the day of that incident but that he was also intoxicated. The Court recognizes that despite there being separate witnesses and facts to be proven in each case there still remains certain inherent judicial economic savings resulting from one trial being held, as opposed to two separate trials, including the need for only one jury or fact finder.
The Court concludes that under the circumstances of this case joinder is permissible and proper pursuant to both CPL 200.20(2)(b) and (c). Moreover, any prejudice to defendant by consolidation does not outweigh the strong public policy interest in granting consolidation. Defendant alleges that he would suffer substantial prejudice by consolidation. See People v. Stanley, 81 A.D.2d 842 (2d Dept 1981). Defendant's reliance on Stanley is misplaced and his characterization that it “is on all fours” with this case is not supported by a reading of Stanley wherein the Second Department reversed the denial of the defendant's severance motion. In Stanley two separate and unrelated incidents occurring on the same date were charged in a single indictment. The Second Department held that defendant's motion for separate trials should have been granted by the trial court since both incidents involved drunken arguments and the use of a knife. The Court in reversing the County Court stated “There was thus demonstrated a strong possibility of conviction by reason of the cumulative effect of the evidence rather than by its separate and distinct relevance to each incident. ( See People v. Forest, 50 A.D.2d 260, 262).” Stanley at 843. Defendant interprets Stanley to hold that when intoxication is involved in both incidents then severance is required. This Court however declines to apply Stanley as broadly as this.
Defendant also maintains that “common sense” and “fairness” dictate that consolidating the two underlying DWI cases at bar is highly prejudicial “because drunkenness, especially because of recent press reports, has become a notorious addiction, or illness that has caused lethal accidents.” (Defendant's papers at 5). It is defendant's position that consolidation in this case would do no more than allow evidence of a well-known propensity to be introduced at trial by the People with a strong possibility of conviction by reason of its cumulative effect. While this Court acknowledges that under the circumstances of certain DWI cases the risk of a jury improperly considering propensity may require denial of a consolidation motion, this Court also recognizes that whenever any offenses are joinable because they are defined by the same or similar statutory provisions [ see CPL 200. 20(2)(c) ] there is always a possible risk that a jury may improperly consider defendant's propensity to commit the crimes. Defendant would in effect have this Court find that consolidation should never be granted when defendant is charged with two separate VTL DWI offenses. This is contrary to a plain reading of CPL 200.20(2)(c) and relevant case law. Even in potentially inflammatory sex cases, some involving different minor victims, joinder was held to be proper. See People v. Hussain, 35 AD3d 504 (2d Dept 2006), lv denied8 NY3d 946 (2007); People v. Montalvo, 34 AD3d 600 (2d Dept 2006), lv denied8 NY3d 883 (2007); People v. Burke, 287 A.D.2d 512 (2d Dept 2001), lv denied97 A.D.2d 679 (2001); People v. Berta, 213 A.D.2d 659 (2d Dept 1995), lv denied85 N.Y.2d 969 (1995); see also People v. McNeil, 39 AD3d 206 (1st Dept 2007) (upholding joinder of three separate robbery incidents).
This Court finds the case of People v. Snyder, 273 A.D.2d 840 (4th Dept 2000), lv denied95 N.Y.2d 858 (2000) cited by the People in support of their consolidation motion to be closer to our case than Stanley cited by defendant. In Snyder defendant was convicted after trial of one count of driving while impaired (VTL x 1192[1] ), two counts of aggravated unlicensed operation of a motor vehicle in the first degree (VTL x 511[3] ), and two counts of felony driving while intoxicated (VTL xx 1192[2], [3],1193 [1][c] ) arising out of three separate incidents. The Fourth Department held that: “Because all charges were based on the same or similar statutory provisions, County Court did not abuse its discretion in denying defendant's motion to sever (see, CPL 200.20[c].
Here, defendant failed to make a convincing showing that he would be unduly and genuinely prejudiced by the joint trials of the charges and failed to demonstrate in concrete terms that he had a strong need to refrain from testifying concerning the charges arising from one incident and important testimony to present concerning the charges arising from the other incidents ( see, People v. Cabrera, 188 A.D.2d 1062, 1063; see also, People v. Lane, 56 N.Y.2d 1, 7–9) ”. Defendant maintains that this Court should not rely upon Snyder since it is a severance case from the Fourth Department whereas Stanley is a binding Second Department case directly on point. For the reasons discussed above this Court does not find that Stanley is binding precedence on this Court.
The People, in addition to citing to Snyder, persuasively cite this Court to an unpublished decision of a Kings County trial court which the People have supplied the defense and this Court. In People v. Terran Van Exel, [Dockets Nos.2009KN007995 and 2008KN051228], April 1, 2010 (McGuire, J.) Judge McGuire granted the People's motion for consolidation relating to two separate drunk driving incidents. The court granted consolidation pursuant to both CPL 200.20(2)(b) [proof defendant knew his license was suspended] and CPL 200.20(2)(c) [the same statutory offenses]. This Court agrees with the legal reasoning of Justice McGuire's decision.
In this case there does not appear to be any material variance in the quantity or strength of proof for the two DWI incidents. See People v. Bonner, 94 AD3d 1500 (4th Dept 2012): People v. Grady, 67 AD3d 563 (1st Dept 2009), lv denied14 NY3d 888 (2010); People v. Prezioso, 199 A.D.2d 343 (2d Dept 1993), lv denied83 N.Y.2d 857 (1994). Moreover the facts of these two cases are not complicated. Therefore the proof of each crime may easily be presented and segregated in the minds of the jurors who are presumed to follow the cautionary instructions of the Trial Judge relating to the joined offenses. See People v. Gause, 19 NY3d 390, 397 (2012); People v. Baker, 14 NY3d 266, 274 (2010); People v. Ford, 11 NY3d 875 (2008); People v. Reyes, 60 AD3d 873 (2d Dept 2009), lv denied12 NY3d 920 (2009): People v. Mathis, 37 AD3d 212 (1st Dept 2007), lv denied8 NY3d 987 (2001). In addition defendant has failed to assert that he has important testimony to give concerning one of the incidents and a strong need to refrain from testifying as to the other incident. SeeCPL 200.20(3)(b) [the grounds for severance where joinder is based on [Slip Op. 7]the same or similar in law theory]; see also People v. Ai Jiang, 62 AD3d 515 (1st Dept 2009), lv denied14 NY3d 769 (2010); People v. Cox, 298 A.D.2d 461 (2d Dept 2002), lv denied 99 N.Y.2d 581 (2003). This Court finds that joinder of the offenses is proper under the grounds set forth by the People [ seeCPL 200.20(2)(b) and (c) ] and that defendant has failed to sufficiently allege that he would prejudiced by this Court granting the People's motion for consolidation.
CONCLUSION
Accordingly, the People's motion for an Order consolidating the above-captioned accusatory instruments is GRANTED for the reasons addressed herein.
IT IS SO ORDERED.