People v Escobar

[*1] People v Escobar 2005 NY Slip Op 50586(U) Decided on March 17, 2005 County Court, Suffolk County Hinrichs, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 17, 2005
County Court, Suffolk County

The People of the State of New York,

against

Antonio Escobar, Defendant.



1578-04



Hon. Thomas J. SpotaChristopher J. Cassar, Esq.

Suffolk County District AttorneyAttorney for Defendant

Kate Wagner, Esq.13 East Carver Street

Assistant District AttorneyHuntington, New York 11743

Criminal Courts Building

200 Center Drive

Riverhead, New York 11901-3303

C. Randall Hinrichs, J.

Defendant has brought a motion, pursuant to Criminal Procedure Law (CPL) § 200.20, seeking severance of various counts of the indictment. The People oppose the motion.

Defendant is charged in the instant indictment with six counts involving two female complainants, as follows: Count One: Rape in the First Degree; Count Two: Burglary in the First Degree; Count Three: Burglary in the Second Degree; Count Four: Sexual Abuse in the First Degree; Count Five: Sexual Abuse in the First Degree and Count Six: Sexual Abuse in the First Degree. Counts One, Three, Four and Five pertain to charges allegedly committed by defendant against a female complainant in the complainant's home in Greenlawn, NY in the early morning hours of June 28, 2004. Counts Two and Six pertain to charges allegedly committed by defendant against a different female complainant in this second complainant's home, also in Greenlawn, NY in the early morning hours of June 28, 2004. Defendant submits that Counts One, Three, Four and Five must be severed from Counts Two and Six for the purposes of trial.

CPL § 200.20 (2) provides, in pertinent part, as follows: "2. Two offenses are "joinable" when: (a) They are based upon the same act or upon the same criminal transaction, as that term is defined in subdivision two of section 40.10; 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; or (c) Even though based upon different criminal transactions, and even though not [*2]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;"

Further, CPL § 200.20(3) provides for a procedure whereby various counts may be severed, in the interest of justice and for good cause shown, "where their joinability rests solely upon the fact that such offenses . . . are the same or similar in law" pursuant to CPL § 200.20(2)(c). No such procedure exists for the severance of counts which have been joined pursuant to CPL § 200.20(2)(b). The Court, therefore, agrees with the People that if the Court finds that the charges within the instant indictment are joined pursuant to CPL § 200.20(2)(b), and not solely pursuant to CPL § 200.20(2)(c), then the Court "lack(s) statutory discretion to sever" the counts. People v Chapman, 145 AD2d 642, 643, 536 NYS2d 163 (2nd Dept. 1988.)

Initially, the Court finds that the various counts are clearly joinable pursuant to CPL § 200.20(2)(c). Counts Two and Three charge different degrees of Burglary as to the two separate complainants. Counts Five and Six both charge Sexual Abuse in the First Degree as to the two separate complainants. The various counts are plainly defined by the same or similar statutory provisions within the meaning of CPL § 200.20(2)(c). It is, therefore, incumbent upon the Court to determine whether the counts in the instant indictment are also joinable pursuant to CPL § 200.20(2)(b) and, if not, then to proceed to apply the procedure outlined in CPL § 200.20(3) to determine whether discretionary severance should be granted in the interest of justice.

In the instant case, according to the testimony of police officers proffered at pretrial hearings, the two separate sets of crimes occurred at each complainant's home within a couple of miles of each other in Greenlawn. The first incident is alleged to have occurred at four a.m. on June 28, 2004 and the second incident is alleged to have occurred at five a.m. on June 28, 2004. In both incidents, the perpetrator is alleged to have unauthorizedly entered each complainant's home and forced himself sexually on the complainant. In the first incident, the complainant described her attacker as a male Hispanic with bad teeth, five foot five inches to five foot seven inches tall, wearing a white tank top and a silver watch, speaking with a heavy Spanish accent. The second complainant described her attacker as a male Hispanic with deformed teeth, five foot six inches to five foot eight inches tall, wearing a white tank top and shorts. The complainant in the second incident told the police that the person who attacked her had recently been doing repair work in her home. The complainant in the second incident will testify at trial that the defendant performed painting work in her home previously, although she did not realize this at the time of her original description to police of her attacker.

The Court finds that the factual similarities in the two sets of crimes charged lead to the conclusion that proof of one set of crimes charged would be "material and admissible as evidence in chief" at trial on the other set of charges. People v Gallishaw, 143 AD2d 198, 531 NYS2d 816 (2nd Dept. 1988) and People v Herrin, 187 AD2d 670, 672, 590 NYS2d 523 (2nd Dept. 1992.) The similarities in the descriptions by the complainants of their attacker, the close proximity in both time and place of the two incidents, the similarity in the nature of the alleged crimes themselves and the fact that the defendant had previously performed work in both complainants' homes, compel the Court to conclude that the two sets of crimes reveal a modus operandi on the part of the perpetrator of both sets of crimes. People v Pought, 154 AD2d 628, 546 NYS2d 458 (2nd Dept. 1989.) The Court finds that the matters are properly joined pursuant to both CPL § 200.20(2)(b) and (c). Accordingly, defendant's application for severance of the two sets of crimes [*3]alleged in the instant indictment is denied.

This memorandum constitutes the decision and order of the Court.

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J.C.C.