People v Cooper
Annotate this CaseDecided on March 31, 2005
County Court, Monroe County
The People of the State of New York, Plaintiff,
against
James Russell Cooper, Defendant.
2005-0024
For the People:MICHAEL C. GREEN, District Attorney
By: Perry Duckles, Esq.
Assistant District Attorney
For the Defendant:EDWARD J. NOWAK, Public Defender
By: Karen Bailey Turner, Esq.
Assistant Public Defender
Frank P. Geraci, J.
Defendant, charged by the instant indictment with having committed the crimes of grand larceny in the fourth degree (counts one through eleven), criminal possession of stolen property in the fourth degree (count twelve), and criminal mischief in the third degree (counts thirteen through fifteen), pursuant to Penal Law §§ 155.30 (4), 165.45 (1), and 145.05 (2), respectively, has moved for severance and a separate trial of count twelve. He contends that this count is improperly joined with the remaining counts of the indictment. Fourteen counts of the indictment stem from several automobile break-ins and thefts of property therefrom, all alleged to have occurred on August 5, 2004, at the same location. The criminal possession of stolen
property count one is alleged to have occurred on July 31, 2004, at a location different than the break-ins. The People oppose severance.
Pursuant to Criminal Procedure Law § 200.20 (2), two offenses are properly joinable when (a) they are based upon the same act or upon the same criminal transaction; (b) even though based upon different criminal transactions, they or the criminal transactions underlying [*2]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; (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; and (d) though not directly joinable pursuant to paragraphs (a), (b) or (c), each is so joinable with a third offense set forth in the indictment. Subdivision three of CPL § 200.20 provides: "In any case where two or more offenses or groups of offenses charged in an indictment are based upon different criminal transactions, and where their joinability rests solely upon the fact that such offenses, or as the case may be at one offense of each group, are the same or similar in law, as described in paragraph (c) of subdivision two, the court, in the interest of justice and for good cause shown, may upon application of either a defendant or the people, in its discretion order that any such offenses be tried separately from the other or others. Good cause shall include but not be limited to situations where there is: (a) substantially more proof on one or more such joinable offenses than on others and there is a substantial likelihood that the jury would be unable to consider separately the proof as it relates to each offense; (b) a convincing showing that a defendant has both important testimony to give concerning one count and a genuine need to refrain from testifying on the other, which satisfies the court that the risk of prejudice is substantial."
Defendant argues that none of the statutory bases for joinder have been met.
Specifically, he contends that count twelve is based upon a different criminal transaction than the rest of the indictment, involves a different victim and does not arise from the same set of facts (see CPL § 200.20 [2] [a]), is neither admissible nor material as evidence upon a trial of any of the other offenses (see CPL § 200.20 [2] [b]), is not defined by the same or similar statutory provisions and requires different elements of proof (see CPL § 200.20 [2] [c]), and is not joinable with any other offense in the indictment (see CPL § 200.20 [2] [d]).
The People concede that criminal possession of stolen property in the fourth degree, as charged in count twelve, is a separate criminal transaction from the rest of the indictment. However, they contend that count twelve is properly joined with the other counts because proof of such count would be material and admissible as proof of the other counts (see CPL § 200.20 [2] [b]; People v. Molineux, 168 NY 264), and that, under such circumstances, it would be improper to order severance (People v. Lane, 56 NY2d 2, 7). They point to two witnesses whose testimony is alleged to support the existence of a common scheme or plan, i.e., breaking and entering cars and leaving the property in parking lots, as well as to a witness whose testimony regarding defendant's identity is alleged to have supplied probable cause for his arrest in connection with both criminal transactions charged in the indictment. Alternatively, the People [*3]state that count twelve is properly joined with the other counts of the indictment pursuant to CPL § 200.20 (2) (c), because such provision allows joinder of offenses charged under the same or similar statutes. In this regard, they also cite the need to promote judicial economy.
It is a well settled principle of New York law that "a court only has the authority to grant severance in a case where joinder of the charges was made pursuant to paragraph (c) of subdivision two i.e., that the offenses are defined by the same or similar statutory provisions"
(Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 200.20, at 410). The determination whether to sever counts of an indictment for separate trials on such ground is addressed to the sound discretion of the trial court (see CPL § 200.20 [3]; People v. Lane, 56 NY2d 1, 7 ). Where, however, counts of an indictment are properly joinable because "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" (see CPL § 200.20 [2][b]), no discretion is vested in the trial court to sever counts pursuant to subdivision three of CPL § 200.20 (People v. Lane, 56 NY2d at 7).
In Lane, the Court of Appeals, discussing severance, stated:
"To effect a severance the applicant must either demonstrate that the counts were not joinable under the statutory criteria (CPL 200.20, subd 2) or seek discretionary severance under CPL 200.20 (subd 3). The latter subdivision applies, however, only with respect to counts which are joinable under paragraph (c) of subdivision 2 of the section (offenses defined by same or similar statutory provisions), and severance will be granted only if he can persuade the court that severance should be granted 'in the interest of justice and for good cause shown.' It is significant that in the last-quoted phrase the Legislature has established a standard for the exercise of discretion on applications for severance in the single category of cases identified."
In the exercise of their discretion in such matters, trial courts must be afforded reasonable latitude and must weigh the public interest in avoiding duplicative, lengthy and expensive trials against the defendant's fundamental right to a fair trial free of undue prejudice (People v. Lane, 56 NY2d at 8).
The People's assertions to the contrary notwithstanding, the court has determined that they have presented insufficient factual allegations which show that proof of the twelfth count would be material and admissible as evidence in chief upon a trial of the other counts of the
indictment, or that proof of the other counts would be material and admissible as evidence in chief upon a trial of count twelve. The identification testimony relates solely to the incident alleged to have occurred July 31, 2004. The People's proffer of evidence to be given by these witnesses relative to a common scheme or plan is premised upon a particular crime allegedly [*4]related to this case, but for which the People presented no evidence to the grand jury for its consideration. Moreover, none of the other statutory bases for severance set forth in subdivision two of CPL § 200.20 are applicable in the circumstances of this case.
Severance is warranted since the defendant has demonstrated that the counts are not joinable under the statutory criteria (see CPL 200.20 [2]). The defendant's motion for severance of count twelve and for a separate trial thereon, is hereby granted.
This Decision shall constitute the Order of the Court.
Dated:March 31, 2005
Rochester, New York
Hon. Frank P. Geraci, Jr.
Monroe County Court Judge
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