People v Bennett

[*1] People v Bennett 2007 NY Slip Op 51939(U) [17 Misc 3d 1112(A)] Decided on October 11, 2007 Criminal Court Of The City Of New York, Kings County Nadelson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 11, 2007
Criminal Court of the City of New York, Kings County

The People of the State of New York

against

James Bennett and Stanley Brooks, Defendants.



2007KNO11917



For the People: ADA Abbie Greenberger

For Defendant Bennet: Daniel Ferreira, Esq.

For Defendant Brooks: Vince Romano. LAS

Eileen N. Nadelson, J.

The Defendants in these matters were arrested on the same day at the same location and each is charged with actual and constructive possession of the same physical drug. Each Defendant was charged on separate dockets with Criminal Possession of a Controlled Substance in the Seventh Degree

The People move to join Defendants in the two dockets for one consolidated trial pursuant to CPL 200.40 because the crimes charged against both Defendants are identical and arise out of the same act and transaction. In its memorandum the People move for joinder and consolidation by asserting that both Defendants are charged with the same alleged offense and the charges are based on a common scheme or plan involving the same criminal transaction. Further, the People maintain that joinder would serve judicial economy.

In his opposition Defendant Bennett argues that joinder and consolidation would be unduly prejudicial to him because he has standing to challenge the search that resulted in finding the crack cocaine. Defendant Brooks allegedly dropped a ziplock bag and therefore abandoned the property and has no expectation of privacy and cannot challenge the search of the bag. Defendant Bennett, in his response, asserts that because he did not abandon the subject bag he does have an expectation of privacy and may challenge the search. However, Defendant Bennett has not shown that he would be unable to challenge the search with respect to him. [*2]

Defendant Bennett has provided no direct judicial support for his position that defendants should not be joined if one can challenge a search and the other may not. The only cases cited by Defendant Bennett generally state that defendants should not have cases joined if the joinder would substantially impair one party 's defense.

The primary case cited by Defendant Bennett, People v. Lane, infra, was decided under CPL 200.20, a pure consolidation issue, in which the defendants were involved in two separate robberies and there was a question of identification. Even so, the court permitted consolidation in the interests of the efficient administration of justice.

The court notes that Defendant Brooks has submitted no response to the People's motion although he was provided ample opportunity to do so.

Severance is not required simply because there may be antagonistic defenses between co-defendants. Only in those circumstances in which the defenses are so irreconcilable would joinder be impermissible. See People v. Golden, 23 AD3d 266, 804 NYS2d 74 (1st Dept. 2005). Further, whether to join or sever cases is in the discretion of the court, and will only be overturned if there is an abuse of discretion. People v. Bornholdt, 33 NY2d 75, 350 NYS2d 369 (1973). [appellate court did not overturn lower court's decision to permit joinder when one defendant wanted to call his co-defendant as a witness]. As stated in People v. Mahboubian, 74 NY2d 174, 544 NYS2d 769 (1989), when persons are charged with committing crimes in concert, joinder is appropriate because it expedites the judicial process, reduces court congestion, and avoids the necessity of recalling witnesses.

CPL 200.40(1)(a) states that defendants may be joined and cases consolidated if they are based on the same act or upon the same criminal transaction resulting from a common scheme or plan. "Severance of charges is discretionary and will be granted only if a defendant can persuade the court that it should be granted in the interests of justice and for good cause shown." People v. Lowe, 91 AD2d 1100, 458 NYS2d 357 (3d Dept. 1983). Defendants have failed to demonstrate that the dockets are not joinable or to persuade the court by apposite judicial decisions that severance should be granted in the interests of justice. People v. Lane, 56 NY2d 1, 451 NYS2d 6 (1982). Therefore, since the court has the discretion to join cases for judicial economy, the court is inclined to do so in this instance. People v. Mahboubian, supra .

The court grants the People's motion. The above-cited dockets are hereby ordered consolidated for trial.

Dated: October 11, 2007

__________________________

Eileen N. Nadelson, J.C.C.