People v Christian

[*1] People v Christian 2009 NY Slip Op 51049(U) [23 Misc 3d 1132(A)] Decided on May 28, 2009 Criminal Court Of The City Of New York, New York County Koenderman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 28, 2009
Criminal Court of the City of New York, New York County

The People of the State of New York,

against

Abel Christian, Defendant.



2008NY051001



For defendant:

Kenneth LaBarca

305 Broadway, Suite 805

New York, New York 10007

For People:

Judith Lewis

Assistant District Attorney

New York County

One Hogan Place

New York, New York 10013

Elisa S. Koenderman, J.

The defendant Abel Christian is charged under each of the three above-referenced dockets with one count of Criminal Sale of Marihuana in the Fourth Degree (Penal Law ["PL"] § 221.40) and one count of Criminal Possession of Marihuana in the Fifth Degree (PL § 221.10[1]).

Under Docket No. 2008NY051001, the defendant and co-defendant Geovanni Rodriguez are accused of acting in concert with separately charged defendant Tineo to sell marihuana. The complaint alleges that on July 9, 2008, at about 11:50 a.m. at 565 Academy Street, an undercover officer observed the defendant and co-defendant Rodriguez walk up and down the block and signal to defendant Tineo whenever police officers or vehicles approached. He further observed the defendant and co-defendant Rodriguez standing close to Tineo when he exchanged marihuana for United States currency with two separately charged buyers, Sandoval and Capo. The complaint additionally alleges that two clear bags containing multiple smaller bags of marihuana were recovered from inside of a pipe "in close proximity" to the defendant.

Under Docket No. 2008NY073671, the defendant is accused of selling marihuana to a separately charged buyer, Achille Iolascon. The complaint alleges that on October 2, 2008, at about 3:35 p.m. at 565 Academy Street, a police officer observed the defendant give separately-charged defendant Iolascon one small zip lock bag of marihuana in exchange for United States currency and [*2]that a small zip lock bag of marihuana was recovered from the defendant Iolascon's vehicle following the sale.

Under Docket No. 2008NY074972, the defendant is accused of selling marihuana to a separately charged buyer, Roy James. The complaint alleges that on October 8, 2008, at about 10:16 a.m. at 565 Academy Street, a police officer observed the defendant give separately charged defendant James marihuana in exchange for United States currency. Seven bags of marihuana were subsequently recovered from a ledge above a doorway in close proximity to where the defendant was standing.

The People move for consolidation of the three dockets so that they may be tried simultaneously before a single jury. To obtain consolidation the People must demonstrate not only that the offenses charged in the separate complaints are joinable in accordance with the statutory criteria set forth in Criminal Procedure Law ["CPL"] § 200.20(2) but also that combination for a single trial is an appropriate exercise of discretion (People v Lane, 56 NY2d 1, 7 [1982], citing CPL § 200.20[4]). Two offenses are joinable when they are based on the same criminal transaction (CPL § 200.20[2][a]) or, alternatively, when proof of either offense would be material and admissible as evidence in chief upon trial of the other or if the offenses are defined by the same or similar statutory provisions (CPL § 200.20[2][b] & [c]; People v Jenkins, 50 NY2d 981, 982 [1980]). In deciding a motion to consolidate, the court must "weigh the public interest in avoiding duplicative, lengthy and expensive trials against the defendant's interest in being protected from unfair disadvantage" (Lane, 56 NY2d at 8). However, "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.). Consolidation has been held to be proper where the proof of each crime is separately presented and easily segregable by the jury, and where there is no material variance in the quantity of proof presented for each crime (People v McCall, 13 AD3d 197 [1st Dept 2004]; People v Santiago, 2 AD3d 263 [1st Dept 2003]; see also People v McNeil, 39 AD3d 206, 207 [1st Dept 2007]; People v Ndeye, 159 AD2d 397 [1st Dept 1990]).

Drug offenses which are the same or similar in law are joinable pursuant to CPL § 200.20(c) (see People v Cruz, 278 AD2d 125 [1st Dept 2000]). Indeed, where a defendant was charged with four counts of criminal sale of a controlled substance based upon four separate sales of crack/cocaine occurring over a five month period, three of which were to the same undercover officer, joinder of the offenses did not deprive the defendant of a fair trial (see People v Merritt, 265 AD2d 733, 734[3d Dept 1999]). Similarly, consolidation of two indictments, each charging the defendant with the sale of cocaine within a few days of the other and both sales involving the same police informant was an appropriate exercise of the court's discretion (People v Castle, 251 AD2d 891, 892 [3d Dept 1998]; see also Cruz, 278 AD2d at 125).

Here, the defendant is charged under each of three dockets with sale and possession of marihuana pursuant to the same statutory provisions. Though the offenses are based upon different criminal transactions, they are nevertheless joinable pursuant to CPL § 200.20(2)(c) (see Jenkins, 50 NY2d at 981; Cruz, 278 AD2d at 125). However, where joinability rests solely on the fact that the offenses are the same or similar in law, in the interest of justice or upon good cause shown, a court may in its discretion order that any offense be tried separately from any other where there is "substantially more proof on one or more joinable offenses than on the others and where there is a substantial likelihood that the jury would be unable to consider separately the proof as it relates to [*3]each offense" (CPL § 200.20[3][a]).

The alleged criminal transaction in each of the three cases occurred in front of 565 Academy Street in New York County. The October 2, 2008 and October 8, 2008 incidents occurred a mere six days apart. All three incidents involve the sale of marihuana to separately charged individuals and each incident was observed by a police officer. On October 2 and October 8, however, the defendant is alleged to have personally handed a quantity of marihuana to a separately charged buyer in exchange for a sum of United States currency. On October 2, 2008, the bag of marihuana which the defendant allegedly sold to the separately charged buyer was recovered from the buyer's vehicle immediately after the sale. On October 8, 2008, subsequent to the sale, a stash of seven bags of marihuana was recovered from a ledge above a doorway in close proximity to where the defendant was standing. In contrast, on July 9, 2008, the defendant and a co-defendant are alleged to have acted as look-outs for a third separately charged defendant who sold marihuana to two individuals. Specifically, the defendant is accused of looking up and down the block and signaling to the seller as police officers and vehicles approached. The defendant was observed standing nearby the seller when the seller exchanged marihuana for US currency with two separately charged buyers. Additionally, the defendant is alleged to have been standing in close proximity to a pipe from which a cache of multiple small bags of marihuana was subsequently recovered. The pipe is not particularly described and the complaint does not amplify the allegation of "close proximity."

Based upon the facts alleged in the criminal complaints, the quantum of proof for the July 9, 2008 incident is substantially lower than that for the October 2, 2008 and October 8, 2008 incidents (see McCall, 13 AD3d at 198; Santiago, 2 AD3d at 263). On October 2nd and October 8th, the defendant is charged as a principal offender in a single marihuana sale based upon the direct eyewitness observations of a police officer. On July 9th, the defendant is not accused of personally selling marihuana. Rather, he is charged as an accessory to two marihuana sales conducted by a separately charged principal offender. While the factual allegations for the July 9th incident do establish a prima facie case against the defendant for Criminal Sale of Marihuana in the Fourth Degree under an acting in concert theory, the evidence of his participation in the alleged sales is considerably weaker for the July 9th incident than it is for October 2nd and October 8th incidents. As a result, there is a danger that the jury would be tempted to view the evidence of all three incidents cumulatively and convict the defendant of the July 9th offenses based upon a perception that he was prone to commit drug offenses (see People v Streitferdt, 169 AD2d 171 [1st Dept 1991]; cf. Merritt, 265 AD2d at 733). Accordingly, because there is a substantial likelihood that the jury would be unable to consider the proof of the July 9, 2008 offenses separately from the October 2, 2008 and October 8, 2008 offenses, consolidation of the July 9, 2008 offenses is denied.

Unlike the July 9th offenses, however, the proof for each of the two October incidents is similar in nature and in strength. Moreover, the evidence for each of the October incidents is uncomplicated and capable of being separately presented to and considered by the jury (see Ndeye, 159 AD2d at 398). Because the risk that the jury might commingle the evidence is not present for the October incidents, consolidation of the offenses committed on October 2, 2008 and October 8, 2008 is appropriate.

The defendant contends that consolidation of the October 2, 2008 and October 8, 2008 offenses nevertheless should be denied on the ground that he "has a strong factual defense which would involve him testifying in his own behalf which is not applicable to the other case." [*4]Specifically, the defendant states that he is "prepared to offer testimony consistent with the statement made to Police Officer Asim Sheikh" on the October 8th offenses and that he "may or may not avail himself of his Fifth Amendment right to remain silent in the other two cases."

Pursuant to CPL § 200.20(3)(b), in the interest of justice and for good cause shown, a court may deny consolidation of offenses which are joinable because they are the same or similar in law where there is "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 that the risk of prejudice is substantial." Good cause under this section may be established by counsel in writing or orally on the record and may be based upon information and belief provided that the sources of the information and grounds for the belief are identified (see CPL § 200.20[3][b][i]). Further, pursuant to CPL § 200.20[3][b] [ii], "upon the request of counsel, any written or recorded showing concerning the defendant's genuine need to refrain from testifying shall be ex parte and in camera." CPL § 200.20(3)(b) codifies the standard articulated in Lane and provides a mechanism for a defendant to make the "convincing showing" required without revealing inculpatory information or trial strategy (see People v Burrows, 280 AD2d 132, 134-135 [4th Dept 2001]). In accordance with the statute, the defendant is entitled to make an ex parte in camera showing solely with respect to the offense upon which he has a genuine need to refrain from testifying (id.). The same protection from disclosure of inculpatory information or trial strategy is not necessary for the offense upon which the defendant has important testimony to give and the defendant is not relieved of his obligation to "making a convincing showing on the record" in that regard. Accordingly, an ex parte in camera procedure is not available for making a convincing showing that the defendant has important testimony to give concerning the October 8, 2008 offenses (id. at 135). Rather, as specifically required by the statute, that showing must be made in writing or orally on the record.

Here, the defendant's affirmation and supplemental affirmation in opposition to the People's motion to consolidate fail to make a convincing showing that he has important testimony to give on the October 8th offenses. The defendant simply states that he is prepared to offer testimony in that case "consistent with the statement made" to a particular police officer. Although the defendant does not indicate what this alleged statement is, the arraignment minutes reflect that the People served notice that the defendant told Police Officer Asim Sheik that "I just came out of my house" at the time the defendant was arrested. This self-serving declaration falls far short of the kind of "important testimony" contemplated by CPL § 200.20(3)(b). Additionally, the defendant fails even to assert that he has a genuine need to refrain from testifying on either of the other two cases. Indeed, the defendant allows that he "may or may not" exercise his right to remain silent on those cases. Thus, there is no cause for an ex parte in camera review.

For the aforementioned reasons, consolidation of October 2, 2008 and October 8, 2008 offenses is granted, and Docket Nos. 2008NY073671 and 2008NY074972 are joined under Docket No. 2008NY073671. Consolidation of the July 9, 2008 offenses under Docket No. 2008NY051001 is denied.

This constitutes the decision and order of the Court. [*5]

Dated:New York, NY

May 28, 2009

___________________________

Hon. Elisa S. Koenderman, JCC