People v Marcial

[*1] People v Marcial 2009 NY Slip Op 52205(U) [25 Misc 3d 1220(A)] Decided on October 22, 2009 Criminal Court Of The City Of New York, Queens 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 22, 2009
Criminal Court of the City of New York, Queens County

The People of the State of New York, Plaintiff,

against

Steven Marcial and RACHEL LIBREROS, Defendants.



2008QN023873

Elisa S. Koenderman, J.

Defendant Steven Marcial is charged under Docket No. 2008QN023873 with Criminal Possession of a Controlled Substance in the Seventh Degree, Penal Law ["PL"] § 220.03, Reckless Endangerment in the Second Degree, PL § 120.20 and Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree, Vehicle and Traffic Law ["VTL"] § 511(1)(A). Defendant Rachel Libreros is charged under Docket No. 2008QN023874 with Criminal Possession of a Controlled Substance in the Seventh Degree, PL § 220.03. The People move to consolidate the above-referenced dockets pursuant to Criminal Procedure Law ["CPL"] § 200.40 so that the charges against each defendant may be heard at a single trial. Neither defendant has opposed the People's motion. Because the charges against each defendant are based upon the same criminal transaction, the motion to consolidate is granted.

The information against each defendant alleges [FN1] that on or about April 29, 2008 at about 7:30 p.m., at the intersection of 81st Street and 133rd Avenue in Queens County, Sergeant Jesse Lance observed defendant Marcial driving a 1999 Chrysler Concorde with defendant Libreros in the front passenger seat. When Sgt. Lance turned his lights on in an attempt to pull the Concorde over, Marcial sped up and drove through three (3) stop signs without stopping. As Marcial was driving on 81st Street between 133rd Street and Sutter Avenue, Sgt. Lance saw a white napkin thrown from the window of the Concorde. Marcial then drove past Sutter Avenue into a dead end street. At that point, Sgt. Lance and Detective Agosto exited their vehicle and ordered Marcial and Libreros out of the Concorde. Instead of complying, Marcial turned the car around, sped up and drove directly at Det. Agosto, nearly hitting him with the car. Det. Agosto subsequently recovered the white napkin from 81st Street between 133rd Street and Sutter Avenue, and concluded that, based on his training and experience, it contained a quantity of crack/cocaine. Sgt. Lance confirmed through the New York State Department of Motor Vehicles records that Marcial's license or privilege to operate a motor vehicle was suspended on 14 occasions on 6 dates and that the Concorde is registered to Libreros.

The People move for consolidation pursuant to CPL §§ 200.40(1)(c) and (2), arguing that the charges against each defendant are based upon the same criminal transaction, and that, apart from the additional charges against Marcial, both [*2]defendants are charged with the identical drug possession offense. Further, the People contend that "neither defendant would be prejudiced by consolidation" since "there is no reason to believe that their defenses would be antagonistic."

CPL § 200.40 governs joinder of defendants in a single indictment and consolidation of indictments against different defendants. This section is applicable to informations, prosecutor's informations and misdemeanor complaints pursuant to CPL § 100.45(1) and controls resolution of the issue of consolidation in the instant cases. CPL § 100.15(2), which governs the form and content of an information, misdemeanor complaint or felony complaint is inapposite.

Under CPL § 100.40(1)(a), an information must substantially conform to the requirements set forth in CPL § 100.15 in order to be facially sufficient. CPL § 100.15(2) states that an information may charge two or more defendants "provided that all such defendants are jointly charged with every offense alleged therein." Accordingly, an information which fails to jointly charge co-defendants with every offense alleged therein is jurisdictionally defective and must be dismissed (see People v Tejada, 180 Misc 2d 228, 230, 233 [Crim Ct, NY County 1997]).

Here the defendants are individually charged in separately-docketed informations which the People seek to consolidate so that the charges may be heard in a single trial. An order granting consolidation would not contravene CPL § 100.15, since the informations, although "consolidated" under a single docket number for trial purposes, would still exist as separate, jurisdictionally sufficient accusatory instruments.

Moreover, CPL § 100.15 is limited to the form and content of an information, misdemeanor complaint or felony complaint and specifically excludes by omission a prosecutor's information. A prosecutor's information is distinct from an information and is defined separately under the statute. An information is "a verified written accusation by a person, filed with a local criminal court" (CPL § 100.10[1]), whereas a prosecutor's information is "a written accusation by a district attorney, filed with a local criminal court" (CPL § 100.10[3]). Additionally, the form and content prescribed for a prosecutor's information differs from that prescribed for an information. Under CPL § 100.35, a prosecutor's information "should be in the form prescribed for an indictment, pursuant to CPL § 200.50." Furthermore, "the rules prescribed in [CPL] sections 200.20 and 200.40 governing joinder of different offenses and defendants in a single indictment are also applicable to a prosecutor's information" (CPL § 100.35).

A defendant must be prosecuted by an information unless he has waived prosecution by an information and consented to be prosecuted upon a misdemeanor complaint (CPL § 170.65[3]; see also People v Kalin, 12 NY3d 225, 228 [2009]; People v Alejandro, 70 NY2d 133, 137 n 2 [1987]). Prior to commencement of trial, the People may file a prosecutor's information which supersedes the original information, provided that the prosecutor's information charges offenses which are supported by the factual allegations of the original accusatory instrument (CPL § 100.50[2]). Therefore, where the court orders consolidation of two or more defendants pursuant to CPL § 200.40, the People may file a superceding prosecutor's information jointly charging the defendants with any offenses which are supported by the facts alleged in the original accusatory instruments.

CPL § 200.40(1)(c) permits two or more defendants to be jointly charged [*3]"provided that . . . all the offenses charged are based upon the same criminal transaction . . . ." A criminal transaction is defined in CPL § 40.10(2) as "conduct which establishes at least one offense, and which is comprised of two or more or a group of 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." CPL § 200.40(2) permits the court, upon application of the people, to order consolidation for trial of two or more defendants who, although charged in separate accusatory instruments, "could have been so charged in a single [instrument] under subdivision one."

A decision to grant consolidation rests within the sound discretion of the trial court (see e.g., People v Fisher, 249 NY 419, 424 [1928]). 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" (People v Lane, 56 NY2d 1, 8 [1982]; see also People v Mahboubian, 74 NY2d 174, 183 [1989] [public policy favors joinder "because it expedites the judicial process, reduces court congestion, and avoids the necessity of recalling witnesses"]). 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.).

The alleged offenses against the defendants are so closely related in time and circumstance, as well as purpose and objective, as to constitute a single "criminal transaction." The entire incident, beginning with Marcial's alleged traffic infraction and ending with his alleged act of reckless endangerment, occurred while both defendants were inside Libreros's Concorde. Moreover, the defendants' flight from the police in Libreros's vehicle - including Marcial's initial failure to pull over when signaled, his driving through three stop signs into a dead end street, the defendants' refusal to exit the vehicle when ordered and Marcial's final escape attempt risking injury to a police officer - coupled with the act of discarding the drugs from the vehicle demonstrates the defendants' community of purpose in evading police apprehension for their possession of crack/cocaine. Furthermore, the witnesses and evidence necessary to prove the charges against both defendants are virtually the same. Consolidation is therefore appropriate in the interest of judicial economy in order to avoid duplicative trials. Finally, no prejudice to either defendant is presently apparent from consolidation; indeed, neither defendant has opposed the motion. Accordingly, the People's motion to consolidate is granted. Additionally, the People are permitted prior to trial to file a superseding prosecutor's information jointly charging the defendants with any offenses based upon the same criminal transaction which are supported by the factual allegations of the original informations (see CPL § 100.50[2]).

REMAINING MOTIONS

Defendant Marcial's motion to preclude the testimony of Detective Agosto; Det. Agosto's medical records; and the introduction of testimony or reports and photos regarding the investigation conducted by the Internal Affairs Bureau is reserved to the trial court. [*4]

This constitutes the decision and order of the Court.

Dated:New York, NY

October 22, 2009

___________________________

Hon. Elisa S. Koenderman, JCC Footnotes

Footnote 1: Though the defendants are individually charged in separately docketed informations, the facts alleged therein are substantively identical.