People v Montalvo

[*1] People v Montalvo 2015 NY Slip Op 51318(U) Decided on August 25, 2015 Criminal Court Of The City Of New York, Bronx County Montano, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 25, 2015
Criminal Court of the City of New York, Bronx County

The People of the State of New York,

against

Brandon Montalvo, Defendant.



THE PEOPLE OF THE STATE OF NEW YORK,

against

JONATHAN HERNANDEZ, Defendant.



THE PEOPLE OF THE STATE OF NEW YORK,

against

EZKEIL WESTON, Defendant.



2015BX023072



The People — Robert T. Johnson, District Attorney, Bronx County by Kelli Untiedt, Assistant District Attorney Defendant Brandon Montalvo — Mentzer & Scheindlin, LLC by Daniel Mentzer (no opposition)

Defendant Ezkeil Weston — The Legal Aid Society by Alana Roth

Defendant Jonathan Hernandez — The Bronx Defenders by Jenay Nurse
Armando Montano, J.

The motion by the People for an order, pursuant to CPL §§ 100.45(1), 200.20(2), 200.20(4), and 200.40(1), consolidating docket nos. 2015BX023072, 2015BX023073, 2015BX023074, and 2015BX023075 for the purpose of trial is granted to the extent that docket nos. 2015BX023072, 2015BX023073, and 2015BX023074 are hereby joined for the purpose of trial.

By misdemeanor complaints filed under docket nos. 2015BX023072, 2015BX023073, 2015BX023074, defendants Brandon Montalvo ("Montalvo"), Jonathan Hernandez ("Hernandez"), and Ezkeil Weston ("Weston") are each charged with Possession of Burglar's Tools (PL § 140.35), Petit Larceny (PL § 155.25), and Criminal Possession of Stolen Property in the Fifth Degree (PL § 165.40). The complaints allege that Officer Eric Rodriguez was informed by Paul Perri that on or about May 17, 2015 at approximately 2:15 AM in front of 2411 Woodhull Avenue in Bronx County, that he observed defendants approach a 2001 yellow Saturn Ion (the "subject vehicle"). Mr. Perri further alleges that he observed defendant Hernandez enter the subject vehicle through the driver's side door and sit in the driver's seat. Defendants were also equipped with cell phones with the flashlights turned on. Defendant Hernandez then removed items from the center console, glove compartment, and visor and placed various items into black backpacks. Defendants Montalvo and Weston entered the subject vehicle through the rear passenger side door and the rear driver's side door, respectively. Once defendants exited the subject vehicle, they gained entry into the trunk and removed additional items and placed them into a bag. Defendant Montalvo was also observed by Officer Yankowski to have in his possession inside of his backpack, one wrench. Subsequently, the owner of the subject vehicle, Bill Wilkins, informed Officer Rodriguez that the following items were missing from inside the subject vehicle: one blazer, two pairs of pants, two pairs of shoes, one box containing six vases, and a sum of US currency.

By misdemeanor complaint filed under docket no. 2015BX023075, defendant Weston is charged Criminal Possession of Stolen Property in the Fifth Degree (PL § 165.40). The misdemeanor complaint indicates that on or about May 17, 2015 at approximately 3:05 AM at the 49th Precinct, defendant was found to be in possession of one Mastercard debit card, one Discover credit card, and one Slate Visa card all bearing the name "Aldon Noku".

The People move to consolidate the above-captioned dockets for the purpose of trial in a single prosecutor's information. The People argue that all four dockets should be consolidated as they constitute the same criminal transaction. The People aver that "evidence from defendant Weston's first arrest directly relates to his second arrest." Affirmation of ADA Kelli Untiedt, at 7. The People note that defendant Weston was in police custody resulting from his first arrest when the evidence related to his second arrest was found in his possession. The People also assert, in a wholly conclusory fashion, that defendants would face no prejudice and their due process rights would remain protected should the dockets be consolidated.

Defendant Weston argues that these dockets cannot be joined since they are not part of the same criminal transaction. Defendant Weston notes that the People do not even allege that [*2]these two incidents occurred at the same time, place, and location or involve the same witnesses. While the two incidents do involve the same arresting officer, he was not a witness to either incident. Defendant Weston further argues that pursuant to CPL § 100.15(2), the People cannot charge multiple defendants with different misdemeanor offenses using a single information.

Defendant Weston also asserts that consolidation would be an improper exercise of judicial discretion in light of the extreme prejudice that would result. Defendant Weston avers that it would be unduly prejudicial for him to defend against all four charges, stemming from two unrelated incidents, in a single trial. Finally, defendant argues that a jury would likely convict based upon the cumulative effect of evidence of two unrelated cases rather than on the strength of the specific evidence regarding each case.

Defendant Hernandez similarly argues that consolidation is improper under CPL §§ 200.20(a) and 200.40 because the offenses charged are not based upon the same act or criminal transaction. Defendant Hernandez points out that there are no allegations in the complaint indicating that debit and credit cards were stolen from the subject vehicle. Defendant further notes that there is no indication as to how or when Mr. Noku's debit and credit cards were stolen. Simply stated, defendant Hernandez asserts that there is nothing to connect the two incidents for the purpose of a joint trial.

This court received no papers in opposition from defendant Montalvo.

"[I]n all cases, a strong public policy favors joinder, because it expedites the judicial process, reduces court congestion and avoids the necessity of recalling witnesses." People v. Mahboubian, 74 NY2d 174, 38 (1989). The decision to grant consolidation is committed to the sound discretion of the court. Although the court is "afforded reasonable latitude in exercising discretion", the Court of Appeals cautioned that "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." People v. Lane, 56 NY2d 1, 8 (1982). "The test, which is fact specific, requires the court to foretell whether granting of consolidation will result in a situation that causes undue prejudice at trial. Id. at 7-8.

A motion pursuant to CPL § 200.20 relates to the joinder of separate charges against a single defendant. The guidelines for determining whether two or more defendants can be joined for the purpose of trial are set forth in CPL § 200.40 (made applicable to informations pursuant to CPL § 100.45).

CPL § 200.40(2) provides in pertinent part:

When two or more defendants are charged in separate indictments with an offense or offenses but could have been so charged in a single indictment under subdivision one above, the court may, upon application of the people, order that such indictments be consolidated and the charges be heard in a single trial.

CPL § 200.40(1) provides that "[t]wo or more defendants may be jointly charged in a single indictment" in the following instances: "all such defendants are jointly charged with every offense alleged therein", "all of the offenses charged are based upon a common scheme or plan", or "all of the offenses charged are based upon the same criminal transaction as that term is defined in subdivision two of section 40.10." The term "criminal transaction" is defined 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 [*3]purpose or objective as to constitute elements or integral parts of a single criminal venture. CPL § 40.10(2).

This court finds that the People have met their burden of demonstrating that the charges set forth in docket nos. 2015BX023072, 2015BX023073, 2015BX023074 are properly joinable pursuant to CPL § 200.40(1)(a) since "all such defendants are jointly charged with every offense alleged therein." In these three dockets, defendants are charged under an acting in concert theory of breaking into motor vehicles and taking items found therein. The accusatory portion and the factual portion of the complaints filed in docket nos. 2015BX023072, 2015BX023073, 2015BX023074 are identical. This court also notes that none of the defendants oppose joinder of these three dockets for the purpose of trial.

This court agrees with the People that they may file a single prosecutor's information jointly charging defendants where the alleged incidents constitute a single criminal transaction pursuant to People v. Marcial, 25 Misc 3d 1220(A) (Crim Ct, Queens County 2009). However, the People have failed to demonstrate that the two incidents constitute the same criminal transaction.

"In order to determine whether or not two acts are part of the same criminal transaction, the court must look at the nature of the crime, as well as the underlying facts (i.e., victim, time, place and date). People v. Griffin, 137 AD2d 558, 559 (2d Dept. 1988). In docket no.: 2015BX023075, defendant Weston is solely charged with possessing debit and credit cards belonging to Mr. Noku. Critically, there is no indication as to how or when defendant Weston came into possession of these items. As such, it cannot be said that the debit and credit cards were taken at or near the same time or place as the items taken from the subject vehicle. It is also wholly unclear whether the cards were taken from Mr. Noku's motor vehicle or his person. The People have also failed to demonstrate any connection between the two complainants, Bill Wilkins and Aldon Noku, or that the eyewitness to the first incident involving all three defendants, Paul Perri, was an eyewitness to the second incident where defendant Weston is solely charged. Just because the fruits of one crime are discovered after a defendant has been arrested for another crime does not mean that the two crimes constitute the same criminal transaction.

In addition, the People have failed to establish that consolidation would be a proper exercise of this court's discretion in light of the prejudice defendant Weston will undoubtedly face during a single trial. It bears emphasizing that "[t]he general rule of evidence applicable to criminal trials is that the state cannot prove against a defendant any crime not alleged in the indictment, either as a foundation for a separate punishment, or as aiding the proofs that he is guilty of the crime charged." People v. Molineux, 168 NY 264, 291 (1901). "The basis for the rule is the fear that a jury might convict not for the crime charged, but because, as evidenced by other criminal conduct, the accused is a person deserving of punishment." People v. Fiore, 34 NY2d 81, 84 (1974). "It is axiomatic that propensity evidence invites a jury to misfocus, if not base its verdict, on a defendant's prior crimes rather than on the evidence—or lack of evidence—relating to the case before it." People v. Rojas, 97 NY2d 32, 37 (2001). "While such evidence may be marginally relevant to the question of the accused's guilt, its probative value is deemed to be outweighed by its potential for prejudice, and, accordingly, the evidence is excluded as a matter of judicial policy." People v. Santarelli, 49 NY2d 241, 247 (1980).

Nevertheless, where the evidence sought to be introduced is relevant to a material fact in the case, other than the defendant's propensity to commit the crimes charged, then such evidence [*4]may be admissible. People v. Ventimiglia, 52 NY2d 350 (1981). The Molineux rule provides that evidence of a defendant's prior crimes or bad acts is inadmissible unless it is probative of a material issue other than criminal propensity and its probative value outweighs the risk of prejudice to the defendant. People v. Alvino, 71 NY2d 233 (1987); People v. Alweiss, 48 NY2d 40 (1979); Molineux, 168 NY 264. The Molineux Court identified the following five exceptions under which evidence of prior crimes or bad acts may be introduced to prove: 1) motive; 2) intent; 3) the absence of mistake or accident; 4) a common scheme or plan; or 5) the identity of the person charged. Molineux, 168 NY2d at 293. This list of exceptions is not exhaustive and are merely illustrative of the instances where evidence of prior criminal conduct may be admissible. People v. Alvino, 71 NY2d 233 (1987); People v. Vails, 43 NY2d 364 (1977).

The cumulative effect of a single trier of fact considering evidence of an unrelated crime in which defendant Weston is charged with breaking into parked motor vehicles for the purpose of stealing would unduly prejudice him. In addition, there is no indication that proof from one case would be material and admissible as evidence upon trial of the others, i.e, none of the Molineux exceptions apply herein. Notwithstanding instructions to the jury to consider the evidence of each crime separately, there is a substantial likelihood that a jury would be swayed by evidence of his general propensity to commit the offenses charged. This court will not impinge upon defendant's right to a fair trial for the sake of expediency.

Accordingly, the People's motion for an order, pursuant to CPL §§ 100.45(1), 200.20(2), 200.20(4), and 200.40(1) consolidating the above-captioned dockets is granted to the extent that docket nos. 2015BX023072, 2015BX023073, and 2015BX023074 are hereby joined for the purpose of trial.

This constitutes the decision and order of this court.

Dated:August 25, 2015

Bronx, New York

_______________________________

Hon. Armando Montano