People v Shuang Huang
Annotate this CaseDecided on June 8, 2009
Criminal Court of the City of New York, New York County
The People of the State of New York, Plaintiff,
against
Shuang Huang, Defendant.
2008CN007776
Logan Gernick, Esq.
The Legal Aid Society
49 Thomas Street
New York, New York 10013
Jennifer Barron,Esq.
Assistant District Attorney
One Hogan Place
New York, New York 10013
Frank P. Nervo, J.
The People move to consolidate docket numbers 2008CN00776,
2009CN000502 and 2009CN000543 for joint trial. Although there is only one defedant, the
People move under CPL§ 200.40(1)(b), joinder of defendants and consolidation of
indictments against different defendants. However, the court will treat the motion as one made
pursuant to CPL§200.20, joinder of offenses and consolidation of indictments.
CPL§100.45(1) makes the latter statute applicable when, as in this case, the accusatory
instrument is an information.
Although the court, on April 6, 2009, directed defendant to serve and file her
opposition papers by May 1, 2009, she failed to do so until June 4, 2009. The court did not learn
of the submisssion until it filed a decision made on defendant's default but was informed by the
clerk's office that the papers had been filed Her attorney has not offered an explanation for his
disregard of the court's directive; nor does he seek to be relieved of his default. Nevertheless, the
court, on its own motion, accepts the oppostion papers that defendant's attorney denominates a
[sic] "Notice of Defendant's Response to People's Motion To Consolidate". In doing so,
however, the court cautions defendant's attorney that his conduct is not acceptable. The late
submission caused [*2]significant inconvenience to the court as it
had to revise its initial decision that had been decided on default.
The court notes that the People do not submit a notice of motion; rather, their
application is made in a document signed by an Assistant District Attorney that is neither in
affidavit nor affirmation form. However, as defendant has not objected to these defects, court
will treat the People's submission as a memorandum of law and will decide the matter on the
merits (see Matter of the Estate of Baer, 46 AD2nd 1368; see also Domansky v.
Berkovivitch, 251 AD2d 3).
Defendant was arrested on three separate occasions: November 2, 2008, December
19, 2008 and December 21, 2008, and charged with violating New York City Administrative
Code of the City of NY § 20-453, unlicensed general vending. The offense is punishable by
a maximum jail term of ninety days ( Administrative Code§ 20-472). On each occasion
defendant, who does not have a vendor's license, displayed and offered jewelry for sale. The first
two acts occurred at 310 Canal Street and the other at the adjacent 308 Canal Street.
The People assert that the evidence of the crimes "will significantly overlap and
separate trials would result in added expense and inconvenience for the parties." The People
argue that the charges are based on a common scheme or plan. Further, the People argue that
joining the cases "would avoid the necessity of repeatedly calling the same witnesses". However,
the People note that "...there are different civilian witnesses for each of the two cases" but "...this
does not outweigh all of the similarities of the [sic] two instances." . The court notes that,
according to the supporting depositions, a different police officer observed each of the three
incidents.
CPL§220.20(c) states that offenses may be joined for trial when, "Even though
based on different criminal transactions, and even thought 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...". The latter provision permits consolidation when proof of one offense
would be material and admissible as proof of the other; therefore, it is inapplicable in this case.
Defendant argues that the People have not met their burden of demonstrating that
consolidation would be an appropriate exercise of judicial discretion. She asserts that joinder
would be prejudicial because a jury could decide that while defendant may have committed one
of the alleged acts, it would convict her of all the charges "because they were convinced that she
was unlawfully vending on only one date." Next, defendant argues that she "... may chose to
testify in one of the matters but not the others"; she requests, because of "these specific details",
an ex parte, in camera application before this court." Defendant does not state what these
"details" are; nor does she indicate in which matter she may chose to testify.
Contrary to defendant's argument, she, not the People, has the burden of proving that
consolidation would be an abuse of discretion ( see People v. Mahboudian, 74 NY2d
174). In exercising that discretion, the court has "...reasonable latitude...[and] must weight the
public [*3]interest in avoiding duplicative, lengthy and costly
trials against a defendant's right to a fair trial free of undue prejudice." ( People v.
Streitferdt, 169 AD2d 171, 176, citing People v. Lane, 56 NY2d 1, 8).
The allegation that defendant "may" wish to testify in only one case is not sufficient
to defeat consolidation. This speculative statement does not amount to a convincing showing that
there is a strong need to testify in one case; nor does she demonstrate that she would be
prejudiced by testifying in one case but not the others ( People v. Lane, id.). Further,
defendant's conjectural allegation about possible testimony does not give the court any reason to
schedule an in camera
hearing (CPL § 200.20(3)(b)(ii), to determine if a need to testify bars
consolidation.
The legal and factual similarities in the alleged incidents is a sufficient basis for
joinder under CPL § 200.20(2)(c). Given defendant's failure to demonstrate that she would
be prejudiced by a single trial, the public's interest in avoiding multiple trials compels the court
to grant the People's motion. ( People v. Lane, id.)
In granting the motion, the court notes the People's assertion that evidence in the
three matters "will significantly overlap." While this would be an impermissible use of evidence
of one crime to prove another, the People will not be able to do this. This matter will be tried by
a Judge, as defendant is not entitled to a jury trial. That Judge is presumed capable of
disregarding improper evidence. (People v. Palmer, 300AD2d 412, citing People v.
Moreno, 70 NY2d 403, 406).
The court also notes that its decision conflicts with the holding that defendant relies
on in People v. Mercado, 17 Misc.3rd 1121(A). The court is not bound by that decision (
see Hamlin v. Bender, 92 Misc. 16), and because this court disagrees with its reasoning,
declines to do so.
The court in People v. Mercado, id. reasoned that the evidence in the three
unrelated cases the People sought to join could suggest that the defendant had a criminal
propensity. Therefore, the defendant would not receive a fair triall This court does not share that
concern. Because the trial Judge will presumptively consider only proper proof, there is no
danger that he or she will improperly use criminal propensity as a factor in making a finding.
Accordingly, it is
ORDERED the motion is granted and docket numbers 2008CN007776,
2009CN000502 and 2009CN000543 are consolidated for a single trial.
This constitutes the decision and order of the court.
Dated: June 24, 2009
ENTER:
_________________
J.C.C.
.
This constitutes the decision and order of the court.
Dated: June 8, 2009
ENTER:
___________________
J.C.C.
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