People v. Estevez
| Citation | 622 N.Y.S.2d 870,163 Misc.2d 839 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Angel ESTEVEZ, Defendant. |
| Decision Date | 06 January 1995 |
| Court | New York City Court |
Charles J. Hynes, Dist. Atty. of Kings County, Brooklyn (Julie Mendik, of counsel), for People.
Carl Wess, Brooklyn, for defendant.
The People are reducing the charges on each of the above dockets to class B misdemeanors and now move to consolidate them for the purpose of a single trial pursuant to Criminal Procedure Law section 200.20[2].
The defense opposes the motion to consolidate and asserts that if consolidation is granted and if the court decides to sentence the defendant on each count consecutively, then the defendant would be exposed to an aggregate sentence of more than six months, which would entitle the defendant to a trial by jury.
This court holds that the prosecutor cannot in good faith reduce several "serious charges" (class A misdemeanors) to which a defendant would be entitled to jury trial to "petty offenses" (class B misdemeanors) and then move to consolidate them for the purpose of a joint trial wherein the potential sentence would be that of a "serious offense" wherein more than six months of imprisonment may be imposed, while denying the defendant a right to a jury trial.
The District Attorney, as the prosecutor for the People of the State of New York, cannot use innovative procedural devices to circumvent a defendant's Constitutional right to a jury trial. While the prosecutor may argue that multiple petty offenses should subject the defendant to a sentence greater than that of a single petty offense, the People are reminded that it was they who chose to reduce those class A misdemeanors to class B misdemeanors in the first place.
Therefore, when the People in their prosecutorial discretion choose to reduce several charges to class B misdemeanors and then seek to consolidate those charges for a joint trial, they also implicitly limit the exposure that the defendant will face if convicted of more than two petty offenses to a sentence not greater than six months of total imprisonment. A total sentence of more than six months would entitle the defendant to a jury trial (see, Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 [1968]; Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 [1970]; CPL § 340.40[2].
In the first docket the defendant is charged with three crimes occurring on three separate dates at the same location and involving the same complaining witness. In the first incident, which allegedly occurred on August 3, 1994, the defendant was originally charged with criminal mischief in the fourth degree (Penal Law § 145.00[1] which was reduced to attempted criminal mischief. In the second incident, on September 8, 1994, the defendant was charged with criminal mischief in the fourth degree (PL § 145.00[1] and petit larceny (PL § 155.25), which were reduced to attempts and menacing in the third degree (PL § 120.15) and harassment (PL § 240.26[1]. The third incident occurred on September 13, 1994, wherein the defendant was originally charged with menacing in the third degree (PL § 120.15) and petit larceny (PL § 155.25), which was reduced to attempted petty larceny. All of the reduced charges remaining on the three incidents are class B misdemeanors, punishable by up to three months in jail and/or a fine of up to $500, with the exception of the harassment charge which is a violation punishable by up to 15 days in jail and/or a fine of up to $250.
The second docket charges the defendant with three counts of criminal contempt in the second degree, a class A misdemeanor 1 (PL § 215.50[3], for violating an order of protection issued by the court on the first docket and harassment in the first degree, a class B misdemeanor (PL § 240.25). The People have stated that upon consolidation they will reduce the criminal contempt charge to attempted criminal contempt (PL §§ 110, 215.50), a class B misdemeanor.
Under Criminal Procedure Law 200.20[2] two or more offenses are joinable when:
(a) They are based upon the same act or upon the same criminal transaction; 2 or (b) Even though 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 3; or (c) Even though based upon different criminal transactions, 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 ...
To understand consolidation one must also look at severance. Consolidation is the procedure by which the prosecutor or defendant attempts to have two or more separate offenses combined for a single trial. In order for a court to grant a motion to consolidate it must be demonstrated that the offenses charged are joinable pursuant to the criteria set forth in Criminal Procedure Law section 200.20[2] and that "combination for a single trial is an appropriate exercise of discretion." (People v. Lane, 56 N.Y.2d 1, 7, 451 N.Y.S.2d 6, 436 N.E.2d 456 [1982].)
Severance is the procedure by which the defendant or prosecutor attempts to obtain separate trials for the counts contained in a single indictment. In order for a court to sever the counts the applicant must demonstrate that either the counts should not have been joined under the statute (CPL § 200.20[2] in the first instance, or seek a discretionary severance under Criminal Procedure Law section 200.20[3]. A discretionary severance will only be granted if the counts were properly joinable under Criminal Procedure Law § 200.20[2][c] () and the court is persuaded that the severance should be granted in the interests of justice and for good cause shown (CPL § 200.20[3]. Additionally, a case should be severed when a defendant asserts that he or she has a reason to testify as to certain counts of an indictment, but wishes to remain silent as to others (Cross v. United States, 335 F.2d 987 [D.C.Cir.1964] or if the defendant makes a convincing showing that he or she "has both important testimony to give concerning one offense and a strong need to refrain from testifying as to the other." (People v. Lane, supra, 56 N.Y.2d at 5, 451 N.Y.S.2d 6, 436 N.E.2d 456.)
In People v. Lane, supra, a defendant committed two robberies on two different dates. In both robberies the defendant hitchhiked a ride and then forced the drivers at knifepoint to ride to the same location where the defendant robbed the driver, took the car and then abandoned the cars in same location for both robberies. The Court of Appeals held that the decision to consolidate is in the "sound discretion of the Trial Judge in light of the circumstances of the individual case" (id. at 8, 451 N.Y.S.2d 6, 436 N.E.2d 456). The court then made a policy statement directing trial courts to balance the judicial economy of one trial with the fairness of the trial:
Trial 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. While 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 (id., at 8, 451 N.Y.S.2d 6, 436 N.E.2d 456).
(See also, People v. Jenkins, 50 N.Y.2d 981, 431 N.Y.S.2d 471, 409 N.E.2d 944 [1980].)
The Court of Appeals held in People v. Shapiro, 50 N.Y.2d 747, 431 N.Y.S.2d 422, 409 N.E.2d 897 [1980] that a trial court abused its discretion in denying a defendant's motion to sever an indictment charging 64 counts of various sex crimes 4 involving boys under the age of 17 from another indictment which charged "the more serious crime" (supra, at 755, 431 N.Y.S.2d 422, 409 N.E.2d 897) of promoting prostitution in the first degree. The Court of Appeals stated that this was a "unique circumstance" (supra, at 755, 431 N.Y.S.2d 422, 409 N.E.2d 897) because it was foreseeable that the proof involved in the 64 less serious counts would compromise the trial on the more serious charge by suggesting that the latter crime was an "outgrowth of the defendant's untoward sexual predisposition ..." (id. at 755, 431 N.Y.S.2d 422, 409 N.E.2d 897). In the dissenting opinion, Judge Gabrielli stated that "it cannot be the mere fact of similarity among the various crimes charged that is the source of the prejudice, for similarity is the very trait that renders the offenses joinable under the statute" (id. at 766, 431 N.Y.S.2d 422, 409 N.E.2d 897).
In 1983, the Third Department held in People v. Hoke, 96 A.D.2d 677, 466 N.Y.S.2d 534 [3d Dept.1983], that the trial court was within its discretion to deny a motion for severance, although one of the counts concerned an attack on a 10 year old boy which took place some three days after an attack on a 13 year old girl, as both crimes were "the same or similar in law" (supra, at 677, 466 N.Y.S.2d 534). The underlying rationale for the court's decision was that the identification was positive in both counts and therefore "prejudice arising from the possibility that the jury might aggregate the evidence relating to each incident" was not shown (id.; see also, People v. Casiano, 138 A.D.2d 892, 526 N.Y.S.2d 627 [3d Dept.1988], app. denied 72 N.Y.2d 857, 532 N.Y.S.2d 507, 528 N.E.2d 897 [1988].
The Appellate Division, Second Department, held in People v. Mack, 111 A.D.2d 186, 488 N.Y.S.2d 815 [...
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...under today's holding from obtaining a trial by jury while still obtaining the same punishment. Cf. People v. Estevez, 163 Misc. 2d 839, 847, 622 N. Y. S. 2d 870, 876 (Crim. Ct. 1995) ("The People cannot have it both ways. They cannot in good faith seek consolidation of several B misdemeano......