ARMANDO MONTANO, J.
Defendants are charged under an acting in concert theory of Criminal Possession of a Controlled Substance in the Seventh Degree (PL § 220.03) and related charges stemming from the execution of a search warrant on or about November 21, 2014 at approximately 6:35 p.m. at the premises located at 320 Morris Avenue, Apt. 4E, Bronx, New York. The arresting officer and the field team recovered from inside the apartment the following: one (1) ziplock bag containing marijuana, one (1) plate with cocaine residue, one (1) razor blade with cocaine residue, one (1) oxycodone pill, and multiple small plastic baggies stamped with a blue playboy bunny symbol containing cocaine residue.
By decision and order dated May 15, 2015, this court dismissed various counts in each of the nine complaints. Currently, defendants Feilder, Jenkins, Rosario, Santiago, Palmer, and Mylan are each charged with two counts of Criminal Possession of a Controlled Substance in the Seventh Degree (PL § 220.03) and one count of Unlawful Possession of Marijuana (PL § 221.05). Defendants Camel and McKelvy are each charged with two counts of Criminal Possession of a Controlled Substance in the Seventh Degree (PL § 220.03) and two counts of Unlawful Possession of Marijuana (PL § 221.05). Defendant Holmes is charged with two counts of Criminal Possession of a Controlled Substance in the Seventh Degree (PL § 220.03), one count of Resisting Arrest (PL § 205.30), and one count of Unlawful Possession of Marijuana (PL § 221.05).
The People argue that the above-named defendants should be joined for purposes of trial because all of the cases satisfy the criteria set forth in CPL §§ 200.40(1)(a), (b), and (c). With respect to CPL § 200.40(1)(a), the People assert each defendant is charged in their respective accusatory instrument with the top charge of PL § 220.03. In addition, the People aver that the remaining charges all stem from the same incident on November 21, 2014. The People note that the circumstances giving rise to the arrests are substantially the same, and are so inter-related so that the evidence required at their respective trials are virtually identical. Therefore, the People argue that defendants are properly joinable pursuant to CPL §§ 200.40(1)(b) and (c).
The People contend that it would be an unreasonable burden on both the People and the court to try each defendant individually since the charges are identical and involve the same witnesses. Moreover, the People assert that consolidation would serve the public interest in avoiding duplicative, lengthy, and expensive trials. The People further aver that there is no indication that defendants would be prejudiced by joinder since proof of each offense charged is separate and clearly discernible.
In opposition, defendants Palmer, Holmes, and Mylan argue that consolidation would be improper because joinder would violate CPL §§ 100.15(2) and 200.40(2). Contrary to the People's assertion, defendants Palmer, Holmes, and Mylan aver that the fact all nine complaints charge defendants with the top count of PL § 220.03 does not mean that defendants are charged identically for purposes of joinder.
Defendants Camel, Holmes, Jenkins, and Santiago argue that they would be denied a fair trial as each defendant will likely allege that the other co-defendants committed the offenses charged, thereby creating an irreconcilable conflict. Joinder would thus force the trier of fact to credit one defendant at the expense of another. In addition, defendants Camel and Holmes assert that the anticipated antagonistic defenses would place counsel for the other co-defendants in the untenable position of acting as a second prosecutor.
Defendant Jenkins argues that that he would be prejudiced in that he would be unable to call the co-defendants as witnesses to provide exculpatory testimony. Since each defendant has a right not to testify under the Fifth Amendment, defendant Jenkins maintains that he would not be able to elicit such evidence from the co-defendants.
Defendant Santiago asserts that he is not yet in possession of all discovery materials and as a result has not asserted his defense. He also avers that he lacks discovery materials pertaining to the other defendants and consequently cannot determine whether the other defendants have made any statements implicating him. As such, defendant Santiago argues that the instant motion should be denied as premature.
This court received no papers in opposition from defendants Feilder and McKelvy.
Especially in cases where the defendants are charged under an acting in concert theory, "a strong public policy favors joinder, because it expedites the judicial process, reduces court congestion and avoids the necessity of recalling witnesses." People v. Mahboubian, 74 N.Y.2d 174, 38 (1989). The decision to grant consolidation is committed to the sound discretion of the court and it will not be overturned unless there was an abuse of discretion. People v. Bornhold, 33 N.Y.2d 75 (1973). Although the court is "afforded reasonable latitude in exercising discretion", the Court of Appeals cautioned 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." People v. Lane, 56 N.Y.2d 1, 8 (1982).
The guidelines for determining whether two or more defendants can be joined for the purpose of trial are set forth in CPL § 200.40 (made applicable to informations pursuant to CPL § 100.45). Criminal Procedure Law § 200.40(1) provides that "[t]wo or more defendants may be jointly charged in a single indictment" in the following instances: "all such defendants are jointly charged with every offense alleged therein", "all of the offenses charged are based upon a common scheme or plan", or "all of the offenses charged are based upon the same criminal transaction as that term is defined in subdivision two of section 40.10."
Criminal Procedure Law § 100.15(2), which dictates the form and content of misdemeanor informations, provides that:
The accusatory part of each such instrument must designate the offense or offenses charged. As in the case of an indictment, and subject to the rules of joinder applicable to indictments, two or more offenses may be charged in separate counts. Also as in the case of an indictment, such instrument may charge two or more defendants provided that all such defendants are jointly charged with every offense alleged therein. (Emphasis added).
In People v. Tejada, 180 Misc.2d 228, 230 (Crim Ct, NY County 1997), the court held that "[t]he ability to join defendants in one information or complaint is thus more restrictive than when joining defendants in an indictment." The court explained that:
When reading CPL 100.15(2) in conjunction with CPL 200.40(1), it is apparent that although CPL 100.15(2) states many of its provisions are the same "as in the case of an indictment", there is a significant caveat contained in the statute. While CPL 200.40 allows two or more defendants to be jointly indicted for one of four reasons, CPL 100.15(2) mandates that a misdemeanor information or complaint "may charge two or more defendants provided that all such defendants are jointly charged with every offense alleged therein."
Therefore, in order to join misdemeanor complaints charging separate defendants, all of the defendants must be identically charged. See, People v. Cruz, Crim Ct, Bronx County, November 19, 2014, Hornstein, J., docket No. 2014BX031864; People v. Reel, Crim Ct, Bronx County, July 2, 2014, Busching, J., docket No. 2013BX073047.
Based on the foregoing, the People have failed to meet their burden of demonstrating that all nine dockets are joinable pursuant to CPL § 200.40(1)(a) since defendants are not jointly charged with identical offenses. Nevertheless, this court finds that defendants Feilder, Jenkins, Rosario, Santiago, Palmer, and Mylan are joinable since these defendants are identically charged with two counts PL § 220.03 and one count of PL § 221.05 for the drugs found in the apartment. Similarly, defendants Camel and McKelvy are joinable as they are identically charged with two counts of PL § 220.03 and two counts of PL § 221.05 for the drugs found in the apartment and on their persons. Defendant Holmes cannot be joined with any of the other defendants because he is the only defendant charged with PL § 205.30.
Notwithstanding the fact that joinder of some of the dockets is proper as the respective defendants are charged with identical offenses, this court "may for good cause shown order in its discretion that any defendant be tried separately from one or more or all of the others." CPL § 200.40(1). Good cause includes, but is not limited to, "a finding that a defendant will be unduly prejudiced by a joint trial." Id. (Emphasis added).
Inherent in every joint trial exists some degree of prejudice to the defendants. Mahboubian, 74 NY2d at 183-184. While "[a] claim of antagonism may arise from a variety of circumstances, it is clear that severance is not required solely because of hostility between the defendants, differences in their trial strategies or inconsistencies in their defenses." People v. Cruz, 66 N.Y.2d 61, 73 (1985) revd. on other grounds and remanded 481 U.S. 186 (1987) on remand 70 N.Y.2d 733 (1987). Rather, under the two-pronged test set forth in Mahboubian, supra, in order to establish that severance is required, a defendant must demonstrate that:
(1) the core of his or her defense is in irreconcilable conflict, i.e., logically inconsistent, with the defense propounded by the jointly tried codefendant, and (2) there is a significant danger that, as both defenses are portrayed during trial, the conflict alone would lead the jury unjustifiably to infer the defendant's guilt simply from the conflicting defenses, i.e., to conclude by virtue of the conflict itself that both defenses are incredible and to give undue weight to the prosecution's evidence. People v. Hope, 186 A.D.2d 872, 874 (3d Dept. 1992).
Where, as here, defendants are charged with acting in concert and "proof against the defendants is supplied by the same evidence, only the most cogent reasons warrant a severance." People v. Bornholdt, 33 N.Y.2d 75, 87 (1973); see also, People v. Barbieri, 207 A.D.2d 554 (2d Dept. 1994). Defendants' conclusory and speculative claims that their likely defenses are mutually exclusive and irreconcilable are insufficient to demonstrate that the core of their possible defenses are in irreconcilable conflict and that there is a significant danger that the conflict alone when presented at trial would lead the jury to infer their guilt.
With respect to defendant Jenkins' argument that joinder would preclude him from calling his co-defendants as witnesses, the Court of Appeals in Bornholdt, 33 NY2d at 87 held that:
Upon a proper showing of need for a codefendant's testimony, it may be an abuse of discretion to deny severance. However, a proper showing of need imports that the movant clearly show what the co-defendant would testify to and that such testimony would tend to exculpate the movant. Moreover, the court is not required to sever where the possibility of the codefendant's testifying is merely colorable or speculative. (Internal citations omitted).
This court finds that defendant Jenkins has failed to demonstrate a clear showing of need to call his co-defendants as witnesses. Defendant Jenkins asserts in the most general terms that he would be unable to call the co-defendants as witnesses if he so requires. Additionally, according to the People's responses to each defendant's demand for discovery, dated March 25, 2015, and the CPL 710.30(1)(a) notices served by the People on all nine defendants, none of the co-defendants would provide any testimony that is exculpatory in nature.
Finally, since defendants have failed to establish that any of the co-defendants made a statement that implicated a fellow co-defendant, there would be no violation of defendants' rights under Bruton v. United States, 391 U.S. 123 (1968) or Crawford v. Washington, 541 U.S. 36 (2003).
This court finds the remaining arguments to be without merit.
Accordingly, it is hereby,
ADJUDGED that the motion by the People for an order, pursuant to CPL §§ 100.45(1), 200.20, and 200.40, consolidating the above-captioned dockets for the purpose of trial is denied; and it is further
ORDERED that defendants Jamel Feilder, Christopher Jenkins, Benjamin Rosario, Carlos Santiago, Tracey Palmer, and Joseph Mylan, docket nos. 2014BX062272, 2014BX062273, 2014BX062274, 2014BX062275, 2014BX062279, and 2014BX062280, respectively, are hereby joined for the purpose of trial; and it is further
ORDERED that defendants Lemar Camel and Goerge McKelvy, docket nos. 2014BX062276 and 2014BX062278, respectively, are hereby joined for the purpose of trial; and it is further
ORDERED that defendant Nathaniel Holmes, docket no. 2014BX062277, shall be tried individually and separately from the other defendants.
