Opinion
Docket Nos. CR-019509-21/NY, CR-019510-21/NY
02-03-2022
The PEOPLE of the State of New York, v. Tyrone TERRELL, Defendant.
Shanni Davidowitz, Esq., For the People of the State of New York, Assistant District Attorney, 1 Hogan Place, New York, New York, (212) 335-9940 Laisa Pertet, Esq., The Legal Aid Society, Attorneys for Defendant, 100 William Street, 20th Fl, New York, New York, (212) 803-5118
Shanni Davidowitz, Esq., For the People of the State of New York, Assistant District Attorney, 1 Hogan Place, New York, New York, (212) 335-9940
Laisa Pertet, Esq., The Legal Aid Society, Attorneys for Defendant, 100 William Street, 20th Fl, New York, New York, (212) 803-5118
John Zhuo Wang, J. The issue presented is whether consolidation for trial purposes of the above two dockets involving the same or similar offenses pursuant to CPL § 200.20 (4) is warranted even though the offenses occurred on three separate dates involving three separate complainants. Because expeditious adjudication in the form of a single trial on both dockets neither leads to any undue prejudice nor compromises Defendant's fundamental right to a fair trial, the People's motion to consolidate is granted.
Background
Defendant is charged with three counts of Public Lewdness (PL 245.00) and Exposure to a Person (PL 245.01). Although each count occurred on a different date, Defendant's conduct is identical: he allegedly exposed his erect penis to a complainant and rubbed it in a manner consistent with masturbation.
The first instance, docketed under CR-019509-21 ("the first docket"), occurred on March 28, 2021 in front of that complainant's place of business. The second incident, docketed under CR-019510-21 ("the second docket"), happened on July 8, 2021 at a subway station. The last occurrence, included in the second docket, took place on July 27, 2021 at a different subway station. During this incident, however, Defendant not only allegedly exposed and rubbed his erect penis in view of the complainant, but he also placed his hand on her buttocks and squeezed after telling her, "I like that ass." Accordingly, Defendant is charged in the second docket with Forcible Touching (PL 130.52[1]) and Sexual Abuse in the Third Degree (PL 130.55).
Following submission of this motion and opposition, Defendant sought a motion schedule to file a separate omnibus motion. At that appearance, the People requested an opportunity to reply to the instant motion. Both applications were granted; however, only the People submitted a reply. Defense counsel has indicated that she will not be filing the omnibus motion.
The People argue that the first and second dockets should be consolidated because both "involve the same defendant and are defined by the same or similar statutory provisions" pursuant to CPL § 200.20 (2). The People reason that consolidating these dockets saves time and judicial and prosecutorial resources including selecting one jury rather than two. The People also contend that the interests of judicial economy outweigh any prejudice to the Defendant, which can be ameliorated by limiting instructions from the trial judge to the jury.
In opposition, Defendant contends that, since both dockets involve three separate acts, locations, dates, and witnesses, consolidating the dockets in this instance is not permitted because joinder does not further the interests of judicial economy. Defendant also contends that consolidation would greatly prejudice him because of the sexual nature of the offenses. Defendant claims that courts are cautious to consolidate sex crimes because the inflammatory nature of these charges will likely lead a jury to find guilt based on an accused's perceived propensity rather than the proof adduced at trial. Rather, Defendant asserts that good cause exists to sever the dockets pursuant to CPL 200.20 (3) because the last occurrence in the second docket involves a more intrusive sexual offense than the allegations in the other occurrences.
Discussion
Criminal Procedure Law § 200.20 governs the rules of consolidation for trial purposes of these misdemeanor dockets (see CPLR § 100.45[1] ["the provisions of sections 200.20 and 200.40 governing consolidation of indictments for trial purposes, apply to informations and to misdemeanor complaints"]). CPL § 200.20 (4) provides that
"[w]hen two or more indictments against the same defendant or defendants charge different offenses of a kind that are joinable in a single indictment
pursuant to subdivision two, the court may, upon application of either the people or a defendant, order that such indictments be consolidated and treated as a single indictment for trial purposes. If such indictments, in addition to charging offenses which are so joinable charge other offenses which are not so joinable, they may nevertheless be consolidated for the limited purpose of jointly trying the joinable offenses. In such case, such indictments remain in existence with respect to any nonjoinable offenses and may be prosecuted accordingly."
The People specifically move under the above-referenced subdivision (2) (c) of CPL § 200.20 permitting joinder of those offenses when such offenses are "defined by the same or similar statutory provisions and consequently are the same or similar in law" even though such offenses are "based upon different criminal transactions." Consolidation of offenses based on § 200.20 (2) (c) are discretionary (see CPL § 200.20[5] ; see also People v. Lane , 56 N.Y.2d 1, 8, 451 N.Y.S.2d 6, 436 N.E.2d 456 [1982] ).
The seminal case on consolidation is People v. Lane, 56 N.Y.2d 1, 451 N.Y.S.2d 6, 436 N.E.2d 456 (1982). In Lane , the Court of Appeals stated that, in considering whether to consolidate offenses, "[t]rial courts should generally weigh the public interest in avoiding duplicative, lengthy and expensive trials against the defendant's interest in being protected from unfair disadvantage" (see 56 N.Y.2d at 8, 451 N.Y.S.2d 6, 436 N.E.2d 456 ). Lane also cautioned that, "[w]hile the trial courts must be afforded reasonable latitude in exercising discretion in these matters, we emphasize that compromise of a defendant's fundamental right to a fair trial free of undue prejudice as the quid pro quo for the mere expeditious disposition of criminal cases will not be tolerated" (see id ).
Despite the sex-related nature of the offenses at bar, the charges here are clearly joinable as legally similar under CPL 200.20 (2) (c) (see People v. Vega , 116 A.D.3d 454, 455, 983 N.Y.S.2d 30 [1st Dept. 2014] [holding two "unrelated" counts for rape were properly joined as "similar in law"]). Nor are the counts here so numerous as to tempt the jury to view the evidence cumulatively and to convict Defendant based on a perception that he was prone to commit the sort of offenses charged in the complaints (compare People v. McCarthy , 51 A.D.3d 587, 587, 860 N.Y.S.2d 500 [1st Dept. 2008] [15 larcenies were properly joined as legally similar]).
Moreover, the alleged conduct to be proven at trial involve acts performed in view of each complainant and Defendant allegedly spoke to the complainant in the last occurrence. Thus, the trial will consist of eyewitness testimony that will turn on straightforward credibility determinations. Given that the charges in both dockets arise from separate, uncomplex criminal transactions, joinder is favored (see People v. Ndeye , 159 A.D.2d 397, 553 N.Y.S.2d 97 [1st Dept. 1990] [affirming consolidation of two indictments that "arose from separate, uncomplex criminal transactions, where on each occasion the defendant entered an automobile and threatened the driver with a gun or knife while robbing him"]; People v. Coppedge , 180 A.D.2d 613, 613, 580 N.Y.S.2d 325 [1st Dept. 1992] [affirming consolidation of separate gun-related crimes and citing to the fact that "the proof with respect to both of the crimes was relatively uncomplicated, well established, and easily amenable to separate consideration by the jury"]).
Additionally, for at least two of the three occurrences, Defendant is identified in video surveillance footage. Where, as here, there may be strong evidence identifying Defendant as the perpetrator, there is little prejudicial effect. This factor also militates in favor of granting consolidation (see e.g. People v. Carlucci , 196 A.D.3d 418, 419, 146 N.Y.S.3d 785 [1st Dept. 2021], lv to appeal denied , 37 N.Y.3d 1026, 153 N.Y.S.3d 416, 175 N.E.3d 441 [2021] [six separate burglaries held legally similar "the primary evidence supporting each of the six charges consisted of surveillance video footage from which defendant could be clearly identified"]; People v. Santana , 27 A.D.3d 308, 309, 815 N.Y.S.2d 26 [1st Dept. 2006] [where there was strong identification evidence as to each of the three drug transactions, consolidation was proper]).
Defendant contends that joinder is precluded because, unlike the first docket, the second docket involves "more intrusive" conduct (i.e. Defendant's squeezing of the complainant's buttocks), which led to additional charges for forcible touching and sexual abuse. This argument is unavailing in view of controlling caselaw (see e.g. People v. McNeil , 39 A.D.3d 206, 207, 834 N.Y.S.2d 99 [1st Dept. 2007] ). In McNeil , the defendant was indicted three times, each for robbery in the first degree involving three separate individuals at different times. Importantly, the third robbery included a charge for sexual abuse in the first degree. The McNeil court held that it was not an improvident exercise of discretion to consolidate because the indictments were defined by the same or similar statutory provisions and the sexual abuse charge was intertwined with one of the robbery charges.
Similarly, Defendant's alleged conduct in forcibly touching the complainant is intertwined with his other conduct in exposing himself and rubbing his penis immediately prior to contact. Because the conduct on both dockets are similar or intertwined, consolidation is warranted here (see also People v. Young , 158 A.D.2d 398, 551 N.Y.S.2d 829 [1st Dept. 1990] [upholding joinder of three indictments based on legal similarity where defendant was charged with rape in the first degree, sodomy in the first degree, assault in the second degree, three counts of robbery in the first degree, and two counts of attempted rape in the first degree]; People v. Clark , 240 A.D.2d 325, 325, 660 N.Y.S.2d 114 [1st Dept. 1997] [held as legally similar rape in the first degree, attempted rape in the first degree, sexual abuse in the first degree]; People v. Marengo , 276 A.D.2d 358, 714 N.Y.S.2d 43 [1st Dept. 2000] [held as legally similar 12 counts of first-degree robbery arising from eight distinctively similar robberies committed in a three-month period against various small commercial establishments in Manhattan; People v. Craig , 192 A.D.2d 323, 323, 595 N.Y.S.2d 479 [1st Dept. 1993] [perpetrated three subway robberies, and attempted a fourth in the same vicinity on the same line, within a close time span, in three of which he used a meat cleaver]).
To the extent Defendant seeks severance pursuant to CPL 200.20 (3), he fails to demonstrate his entitlement to such relief. Defendant neither asserts that he has important testimony to give concerning some counts and a strong need to refrain from testifying as to others (compare People v. Screahben , 35 A.D.3d 246, 825 N.Y.S.2d 52 [1st Dept. 2006] [three knifepoint robberies as evidence of modus operandi]; People v. Wright , 300 A.D.2d 191, 192, 750 N.Y.S.2d 863 [1st Dept. 2002] ). "Nor does the fact that crimes of a sexual nature were involved in each incident provide a sufficient basis for a severance" (see People v. Streitferdt , 169 A.D.2d 171, 176, 572 N.Y.S.2d 893 [1st Dept. 1991] [affirming denial of a motion to sever six sex-related offenses despite the numerosity of counts]). The other cases Defendant relies on are not controlling in this Department, are inapposite, or both (see People v. Daniels , 216 A.D.2d 639, 640, 627 N.Y.S.2d 483 [3d Dept. 1995] ; People v. Pinkas , 156 A.D.2d 485, 486-487, 548 N.Y.S.2d 767 [2d Dept. 1989] ) [prosecutor's comingling of events in the presentation of her case-in-chief and in summation caused undue prejudice in consolidated trial]).
Accordingly, it is
Ordered that the People's motion to consolidate dockets CR-019509-21/NY and CR-019510-21/NY for trial purposes only is granted; and it is further
Ordered that this matter is adjourned to February 3, 2022 in Part A at 100 Centre Street for further proceedings.