People v McGovern

[*1] People v McGovern 2004 NY Slip Op 51406(U) Decided on November 18, 2004 City Court Of Mount Vernon 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 18, 2004
City Court of Mount Vernon

The PEOPLE OF THE STATE OF NEW YORK,

against

JOHN McGOVERN, LOUIS CLOIDT, THOMAS McGOVERN, JERIES NESHEIWAT, and 2 GLEN SCUDERI, Defendants.



03-3288



Jean Ferris Pirro, District Attorney, Mount Vernon, for plaintiff.

Servino, Santangelo & Randazzo, Esqs.

Michael G. Santangelo, Esq.

Attorneys for Defendant Scuderi

151 Broadway

Hawthorne, New York 10532 Peter Davis, Esq.

Attorney for Defendant Cloidt

P.O. Box 2467

Mount Vernon, New York 10550

Richard B. Herman, LLC

Attorney for Defendant Nesheiwat

300 Park Avenue, Suite 1700

New York, New York 10022

William T. Martin, Esq.

Attorney for Defendant Thomas McGovern

32 Court Street

Brooklyn, New York 11201

Gregory Lance Wood, Esq.

Attorney for Defendant John McGovern

630 Gramatan Avenue, Suite 1Z

Mount Vernon, New York 10552

Adam Seiden, J.

In this proceeding charging the above defendants with animal cruelty pursuant to Agriculture and Markets Law §353, the People move to consolidate each of the defendant's cases for trial; Glen Scuderi (03-3288), John McGovern (03-3294 and 03-3382), Jeries Nesheiwat (03-3289), Thomas McGovern (03-3285), and Louis Cloidt (03-3296). Defendants Jeries Nesheiwat and Glen Scuderi each oppose the motion to consolidate and cross-move to sever their trials from that of each of the other codefendants.

CPL 200.40(1) states that two or more defendants may be jointly charged in a single accusatory provided that: (a) all such defendants are jointly charged with every offense alleged therein; or (c) all the offenses charged are based upon the same criminal transaction as that term is defined in subdivision two of section 40.10. Under CPL 40.10, "Criminal transaction" means acts either (a) so closely related and connected in point of time and circumstance of commission as to constitute a single criminal incident, or (b) so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture. The defendants named in the above dockets are each charged with one count of animal cruelty pursuant to Agriculture and Markets Law §353 based upon the death, malnutrition and lack of proper care of animals located at 8 Franklin Avenue in Mount Vernon, between July 31 and August 3, 2004. It is clear that each defendant is charged with the same offense, and that the acts are closely related and connected in point of time and circumstance so as to constitute a single criminal transaction. Thus, the dockets may properly be consolidated for trial under CPL 200. 40(1) and (2) (see People v Bornholdt, 33 NY2d 75 (1973)).

However, defendants Scuderi and Nesheiwat move to sever their trials from each other and the other codefendants. A motion for a separate trial is directed to the sound discretion of the trial court, subject to review only for an abuse thereof (People v Owens, 22 NY2d 93 (1968)). Where proof against the defendants is supplied by the same evidence, only the most cogent reasons warrant a severance (People v Bornholdt, supra; People v Mahboubian, 74 NY2d 174 [*2](1989)).

Defendant Scuderi seeks a separate trial because he claims the other defendants' trial strategy will place blame for the crime on him. However, "severance is not required solely because of hostility between the parties, differences in their trial strategies or inconsistencies in their defenses," and is compelled only where the core of each defense is in irreconcilable conflict with the other and where there is a significant danger that the conflict alone would lead the jury to infer a defendant's guilt (People v Mahboubian, supra at 184; People v Apolinar, 208 AD2d 548 (2d Dept 1994)). Defendant Scuderi has not demonstrated that his defense will be in irreconcilable conflict with that of the other defendants. Defendant Scuderi's motion for severance is therefore denied.

Defendant Nesheiwat contends that a separate trial is warranted in his case because the other codefendants would be willing to testify to exculpate him if he was tried separately. Upon a proper showing of need for a codefendant's testimony, it may be an abuse of discretion to deny severance (People v Owens, supra, at 98). However, a proper showing of need imports that the movant clearly show what the codefendant would testify to and that such testimony would tend to exculpate the movant (People v Mahboubian, supra). Moreover, the court is not required to sever where the possibility of the codefendant's testifying is merely colorable or speculative (Id.).

Here, defendant Nesheiwat's claim that other codefendants would testify to exculpate him is merely speculative. He has not demonstrated that the other defendants would in fact testify in his behalf or what their testimony would be. Defendant Nesheiwat's motion for severance is therefore denied (see People v Bornholdt, supra; People v Tolbert, 202 AD2d 171 (1st Dept 1994)).

For the above stated reasons, the People's motion to consolidate dockets #03-3288, 03-3294, 03-3382, 03-3289, 03-3285, and 03-3296 for trial is granted.

This constitutes the Decision and Order of this Court.

Dated:November 18, 2004

Mount Vernon, New York _________________

HON. ADAM SEIDEN

Associate City Judge, Mount Vernon

Jean Ferris Pirro, District Attorney, Mount Vernon, for plaintiff.

Servino, Santangelo & Randazzo, Esqs.

Michael G. Santangelo, Esq.

Attorneys for Defendant Scuderi

151 Broadway

Hawthorne, New York 10532 [*3]

Peter Davis, Esq.

Attorney for Defendant Cloidt

P.O. Box 2467

Mount Vernon, New York 10550

Richard B. Herman, LLC

Attorney for Defendant Nesheiwat

300 Park Avenue, Suite 1700

New York, New York 10022

William T. Martin, Esq.

Attorney for Defendant Thomas McGovern

32 Court Street

Brooklyn, New York 11201

Gregory Lance Wood, Esq.

Attorney for Defendant John McGovern

630 Gramatan Avenue, Suite 1Z

Mount Vernon, New York 10552