People v Lawson

[*1] People v Lawson 2012 NY Slip Op 52199(U) Decided on December 3, 2012 Supreme Court, Queens County Kohm, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 3, 2012
Supreme Court, Queens County

The People of the State of New York, Plaintiff,

against

Thomas Lawson, Branson McDonald & Roy Worth, Defendants.



3078/2011



Appearances of Counsel:

For the Defendants:

Steven Sternberg, Esq. - for the defendant Lawson

Queens Law Associates

118-21 Queens Blvd., Ste. 212

Forest Hills, NY 11375

718-261-3047

Joseph Sulik, Esq. - for the defendant McDonald

125-10 Queens Blvd.

Kew Gardens, NY 11415

718-544-5404

Robert Didio, Esq - for the defendant Worth

80-02 Kew Gardens Road, Ste. 307

Kew Gardens, NY 11415

718-575-5145

For the People:

Hon. Richard A. Brown

District Attorney - Queens County

125-01 Queens Blvd.

Kew Gardens, NY 11415

By: Anisha Abraham, Esq.

718-298-6976

Robert Charles Kohm, J.

Findings of Fact

In an eighteen count indictment the defendants, Lawson, McDonald & Worth, have been charged with various robbery and weapons offenses arising from their alleged participation in an [*2]armed robbery of one Derwin Spencer and in an attempted robbery of one Neville Louisen, in the early morning of August 24, 2011; in addition, McDonald has been charged with one count of Reckless Endangerment in the First Degree relating to his alleged firing of a weapon at the vehicle in which the two victims were fleeing, and Worth was charged with two Vehicle & Traffic Law violations.

Minutes after the subject robbery, the defendants were pulled over by the police in a GMC truck in which they were riding and Worth was driving. The defendants were placed under arrest and taken to the 112th Precinct, where they each made oral and/or written statements to the police. The facts and circumstances of the underlying stop of the defendants' truck, the search of the vehicle and of the defendants, and the obtaining of statements from the defendants by the police were the subject of a Dunaway/Mapp/Huntley hearing held over several days in March of this year. In its memorandum decision, dated June 27, 2012, the Court denied Worth's motion to suppress oral and written statements; Lawson's motion to suppress a written statement; and McDonald's motion to suppress an oral statement.

In sum and substance, Worth allegedly told the police that as he was driving down the block he noticed three guys standing outside a car whose door was open; that as he passed them he heard gun shots go off, and then his doors suddenly came open and two men jumped into his vehicle holding guns; that he was told to "Get the f * * k out of here; and that he was almost immediately pulled over by the police. Worth also allegedly told the police that he knew the two men, Lawson & McDonald, from the neighborhood.

In sum and substance, Lawson allegedly told the police that he and McDonald were in Worth's vehicle traveling to a strip club; that Worth told McDonald to get out and rob two guys with a Mr. Ballard [FN1] as a lookout; that McDonald complied with Worth's request, but got hit by a car and started firing shots at that vehicle; and that McDonald jumped back in the car and they were stopped by the police. Lawson also allegedly told the police that he had no idea that there were firearms in the vehicle.[FN2]

McDonald allegedly made the following confession to the police: Earlier in the day, Roy Worth, Thomas Lawson and I made plans to meet at a strip club. When we got to the club it was close to closing time, around 3:30 a.m. We were in an SUV and Roy got out to speak to a friend of his. Lawson and I went to get some food to eat. At that point, we noticed two guys that had jewelry. I went back to the SUV and got my gun. I put my gun to the chest of the guy that was wearing the chain and the watch. I walked away. Then I saw a car speeding towards me. I didn't realize it was the guys I robbed until it was too late. The car hit me in the leg, it brushed my leg on the side. I was scared for my life, so I started to shoot at the car. I did all the shooting, no one else.[FN3]

All three defendants have moved, pursuant to CPL §200.40(1), for orders severing their trials from the other two defendants. CPL §200.40(1) provides, in pertinent part, that even if two [*3]or more defendants have been "jointly charged in a single indictment . . . the court, upon motion of a defendant or the people . . . may for good cause shown order in its discretion that any defendant be tried separately from the other or from one or more or all of the others." The People have opposed the defendants' application, and have advised the Court and the defendants that they do not intend to use either of the statements allegedly made by Worth and Lawson in their case in chief at a joint trial. In addition, the People have proposed to redact McDonald's statement as follows: Where it now reads "At that point, we noticed two guys that had jewelry," the redacted version would instead read "At that point, I noticed two guys that had jewelry," thereby eliminating the prior reference to Lawson also noticing the guys with the jewelry. This, the People argue, will effectively eliminate any potential Bruton (391 US 123) confrontation issue, since the only person implicated for the robbery in the redacted statement is McDonald himself. A reply of affirmation and memorandum in support of his motion for severance was submitted by the defendant Worth.

Conclusions of Law

"The decision to grant or deny a separate trial is vested primarily in the sound judgement of

the Trial Judge. Where proof against the defendants is supplied by the same evidence, only the most cogent reasons warrant a severance' (People v Bornholdt, 33 NY2d 75, 87). While that is particularly true where the defendants are charged with acting in concert, in all cases a strong public policy favors joinder, because it expedites the judicial process, reduces court congestion, and avoids the necessity of recalling witnesses (Parker v United States, 404 F2d 1193, 1196)" (People v Mahboubian, 74 NY2d 174).

Here, the defendants raise, in the alternative, three reasons why they believe severance is warranted: 1) the appearance of antagonistic defenses; 2) unresolved Bruton issues; and 3) a concern over being arduously cross-examined by counsel for a co-defendant concerning prior bad acts and/or convictions, despite a prospective Sandoval ruling by the Court with respect to the prosecutor.

In Mahboubian, supra, 184-185, the Court of Appeals defined the standard that must be utilized by a court when determining if a party or parties have demonstrated good cause, such as to override the strong public policy favoring joinder, "concluding that severance is compelled where the core of each defense is in irreconcilable conflict with the other and where there is a significant danger, as both defenses are portrayed to the trial court, that the conflict alone would lead the jury to infer defendant's guilt." The Court of Appeals observed that "motions for severance typically arise at the pretrial stage or in the course of trial" (so that) "the trial court must apply this standard prospectively, based on its discretionary assessments of the strategies and evidence as forecast by the parties" (People v Mahboubian, supra).

Turning to the case at bar, it is evident to this Court that the defense of Worth is in irreconcilable conflict with the defenses of Lawson and McDonald, to the extent that the conflicting defenses must be deemed antagonistic. As counsel for Worth argues, this defendant does intend to testify at trial and would, in fact, lay the entire blame for the subject crimes directly at the doorstep of the co-defendants. Worth would testify that he had no knowledge of the robbery until both defendants, without invitation, entered his vehicle carrying weapons. He [*4]would further testify that they have both admitted to him, on multiple occasions, that they did rob the complainant and did possess the two weapons which were eventually found by the police when they searched his vehicle. By virtue of the fact that the two loaded and operable guns were found in the vehicle (one under the middle row, middle seat, and the other in the rear cargo area) and not on the person of any of the occupants, Worth is faced with the statutory presumption of possession set forth in Penal Law §265.15(3). That fact, as well as the fact that part of the proceeds of the robbery, a silver watch, was seized by the police from within a map pocket behind the front passenger seat, will compel the defendant to testify in his own defense.

Now that both defendants have recanted their statements allegedly made to the police, their defenses, whether they testify at trial or not, can logically be expected to be that they had nothing at all to do with the robbery, nor with the weapons or watch that were found in Worth's vehicle. How and under what circumstances they found themselves in Worth's vehicle (they were going to a strip club? They panicked at the sound of gunfire?) is immaterial to the Court's decision on these motions. What is material is that they, by their testimony or by argument of their counsel to the jury, will attempt to absolve themselves of all culpability by defenses so in conflict with that of Worth, that there is a significant danger that the conflict alone would lead the jury to infer Worth's guilt. As in Mahboubian, supra at 185, the defenses of Lawson and McDonald are "not only antagonistic to that of Worth, but also mutually exclusive and irreconcilable." Therefore, the trial of Worth will be severed from the trial of Lawson and McDonald.

The Court does not find that the defenses of these two co-defendants are antagonistic with each other. As the Court of Appeals recognized in People v Cruz (66 NY2d 61, revd on other grounds and remanded 481 US 186, on remand 70 NY2d 733), "severance is not required solely because of hostility between parties, differences in their trial strategies or inconsistencies in their defenses" (People v Mahboubian, supra, at 184). The Court concludes that neither Lawson or McDonald have demonstrated by cogent reasons to the satisfaction of this Court that the cores of their defenses are in irreconcilable conflict or that there is a significant danger that any conflict, standing alone, would lead a jury to infer the guilt of one or the other.

With respect to the Bruton issue, the decision by the People not to introduce Lawson's written statement on their direct case and their proposed redaction of McDonald's oral statement, renders that issue moot. Even were McDonald to elect not to testify, despite the damning nature of his confession and the fact that a necklace belonging to Mr. Spencer was allegedly recovered by the police from inside his pants pocket during a pat-down following the stop of the vehicle, Lawson would not be deprived of his rights under the Confrontation Clause to the United States Constitution because the non-testifying co-defendant's (McDonald) confession was not at all incriminating, post- redaction, as to him.

The last issue raised by the defendants is the prospect of their being extensively cross-examined by counsel for a co-defendant concerning prior bad acts and/or convictions. In People v McGee, 68 NY2d 328, the Court of Appeals held that "when defendants are tried together a Sandoval ruling made with respect to one does not apply to limit the scope of cross-examination of that defendant by the other." Two years later, in 1988, the Appellate Division: Second Department, in People v Williams (142 AD2d 310, 312 app den 73 NY2d 1023), was "presented with an opportunity . . . to bridge a gap in the case law so as to reconcile the fact that a Sandoval [*5]ruling may not be used as a ground for limiting the cross-examination by a defendant of his co-defendant with the trials court's power to exercise its traditional discretion in limiting such a cross-examination in order to achieve a balance between the often competing rights of a defendant and co-defendant to a fair trial when they are tried jointly." After a thorough and historical analysis of the issues, the Appellate Division held that "under appropriate circumstances the trial court may properly use its discretionary powers to limit the defendant's cross-examination into his co-defendant's prior convictions, despite the inapplicability of Sandoval" (People v Williams, supra).

In Williams, the defendant and his co-defendant Haskins were tried jointly for the robbery of a taxi driver. During the course of the trial and on cross-examination of the co-defendant by counsel for the defendant, the court precluded defendant's counsel from going into the underlying facts of the co-defendant's youthful offender adjudication in connection with an attempted robbery, as well as the underlying facts of a juvenile delinquent adjudication in connection with another attempted robbery. Although the trial court erred when it ruled that the defendant's cross-examination of Haskins was restricted by its prior Sandoval ruling, which precluded the People from any inquiry into the underlying facts of the two prior incidents, the Appellate Division found that the ruling did not constitute reversible error because the Trial Judge did not abuse his discretion in limiting the cross-examination of the co-defendant, even if it did so under a faulty rationale (see, also, People v Brodie, 170 AD2d 519, app den 78 NY2d 1009; People v Marrant, 268 AD2d 387, lv to app den 94 NY2d 950).

Here, the defendant Lawson's criminal history does not contain any convictions, being limited to two violations for Disorderly Conduct. Co-defendant McDonald, however, has two criminal convictions: a misdemeanor for Criminal Possession of a Weapon in the Fourth Degree and a felony for Robbery in the Third Degree. Therefore, should McDonald decide to testify, he may first seek a Williams hearing with respect to the degree of latitude counsel for Lawson will be permitted on cross-examination.

Accordingly, all motions to sever are granted to the extent that Worth will be tried separately from Lawson and McDonald; Lawson and McDonald will be tried jointly.

The foregoing constitutes the Opinion and Decision of the Court.

Order signed herewith.

The Clerk is directed to forward copies of this Memorandum Decision and the accompanying Order to the attorneys for the defendants and to the District Attorney.

____________________________

Robert Charles Kohm

J.S.C. Footnotes

Footnote 1: Ballard is not a subject of these proceedings.

Footnote 2: Lawson has since recanted his entire statement.

Footnote 3: Like Lawson, McDonald has since recanted his entire statement.