People v Jenkins

[*1] People v Jenkins 2015 NY Slip Op 51740(U) Decided on November 30, 2015 County Court, Sullivan County LaBuda, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 30, 2015
County Court, Sullivan County

The People of the State of New York,

against

Gordon Jenkins and JAMES SNOWDEN, Defendants.



156S-2014



Michael Sussman, Esq., Sussman & Watkins, 1 Railroad Avenue—Suite 3, PO Box 1005, Goshen, NY 10924, Attorney for Defendant Gordon Jenkins

Gary Greenwald, Esq., Gary Greenwald & Partners, PC, 99 Brookside Avenue, Chester, NY 10918, Attorney for Defendant James Snowden

Hon. James R. Farrell, Sullivan County District Attorney, 414 Broadway, Monticello, NY 12701, Attorney for the People
Frank J. LaBuda, J.

This matter comes before the Court on Defendants' motion for severance. The Court heard oral argument on October 29, 2015, and at that time directed all parties to make additional submissions on or before November 30. 2015. Both defendants submitted written motions for severance, and the Prosecution has submitted an affirmation in opposition.

This case involves the demolition of the former Village of Monticello Courthouse located on Route 42/Pleasant Street, in Monticello, Sullivan County, New York, which occurred during the late summer of 2013. The building, which was in a very dilapidated condition and contained asbestos, was demolished by a private contractor on October 2, 2013, without having had any asbestos abatement as required by law.[FN1] After an investigation by the New York State Department of Environmental Conservation (hereinafter, "DEC"), local and state police departments, and the Sullivan County District Attorney's Office, the Prosecution presented the case to a Sullivan County Grand Jury, which returned the instant indictment charging the defendants with one count of Bribe Receiving in the Third Degree (PL §200.10), one count of Criminal Mischief in the Second Degree (PL §145.10), two counts of Conspiracy in the Fifth Degree (PL §105.05(1)), three counts of Official Misconduct (PL §195.00(1), (2)), one count of Endangering Public Health, Safety or Environment (ECL §71-2711(3)), and one count of [*2]Criminal Nuisance in the Second Degree (PL §240.45(1)).

Severance may be granted for cases in which multiple defendants have antagonistic defenses. People v. Mahboubian, 74 NY2d 174 [1989]. Even if the charges against multiple defendants are properly joined in a single indictment, a trial court may grant severance "for good cause shown," from which a court finds that a "defendant will be unduly prejudiced by a joint trial." CPL §200.40(1). "Where proof against the defendants is supplied by the same evidence, only the most cogent reasons warrant severance.'" People v. Mahboubian, 74 NY2d 174, 183, citing, People v. Bornholdt, 33 NY2d 75, 87 [1973].

Severance is not required, even in those cases in which there is hostility between or amongst the parties, different trial strategies, or inconsistencies in each defense. People v. Cruz, 66 NY2d 61 [1985], rev'd on other grounds and remanded, 481 US 61. "It must appear that a joint trial necessarily will, or did, result in unfair prejudice to the moving party and substantially impair his defense." Id., at 73, 74.

In determining whether defenses are sufficiently antagonistic, therefore requiring severance, a court looks to two tests. In the first, a court must determine whether the defenses are logically inconsistent—whether the core of each defense is rationally irreconcilable with the other. See United States v. Romanello, 726 F2d 173 [5th Cir. 1984]. In the second test, a court must consider whether there is a danger that a jury will unjustifiably infer a defendant's guilt because of the conflicting and irreconcilable defenses. See Rhone v. United States, 365 F2d 980 [DC Cir. 1966]. In New York, more specifically,

[S]everance 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. Mahboubian, 74 NY2d 174, 184.

In the instant case, the defendants are properly joined in a single indictment, however the issue remains as to whether or not severance for a jury trial should be granted.

Defendant Jenkins' Argument

Defendant Jenkins [FN2] argues that severance is necessary for several reasons. First, co-defendant Snowden's counsel has acknowledged that Snowden will raise racial discrimination as part of his defense. Jenkins argues this will prejudice his defense. In the fall of 2013, Jenkins was arrested and charged with misdemeanor Driving While Intoxicated (hereinafter, "DWI"). While [*3]at the police station, he perceived he was subjected to racially motivated rude and inappropriate treatment by police officers. He responded with an emotional and angry tirade, which included many racial slurs against white people and was filmed by the Monticello Police Department on video tape that received national media attention.[FN3] The recording subsequently became a significant reason for his removal as Mayor of Monticello. Because of the circumstances surrounding the DWI case, Jenkins has determined he will not rely on a defense involving racial discrimination and selective enforcement and prosecution in the instant matter; he is concerned raising such issues will cause jurors to recall the recorded tirade. Jenkins argues that if the defendants are tried together, the jury will hear Snowden's claims of racial discrimination, recall the video recordings of Jenkins in the holding area of the Monticello Police Department in 2014 from the prior DWI incident, and that such recollection will prejudice his ability to properly defend himself in the instant matter.

Second, Jenkins argues that the Prosecution's case will necessarily be dependent on the introduction of allegedly inculpatory statements made by either or both defendants to non-law enforcement third parties. During a court appearance on October 29, 2015, the Prosecution indicated that neither Defendant made inculpatory statements to law enforcement.[FN4] Jenkins therefore argues that it is highly likely that the Prosecution will seek to introduce evidence through non-law enforcement witnesses to try to establish that either defendant made an admission or failed to state or take some action, which is indicative of either's guilt, to or in the presence of non-law enforcement third parties who will be called as witnesses. Jenkins points out that in Crawford v. Washington, 541 US 36 [2004], the United State Supreme Court held that recorded, out of court statements by non-law enforcement witnesses violate the Sixth Amendment right to be confronted when the testimonial evidence could not be challenged by cross-examination prior to trial or during trial. If both Jenkins and Snowden are tried together, Jenkins argues neither defendant will have an opportunity for meaningful confrontation, since neither defendant can call or compel the other defendant to testify at the trial.

Defendant Snowden's Argument

Snowden argues that any conflict between the defendants could lead a jury at a joint trial to attribute guilt to Snowden, who is the Code Enforcement Officer and building inspector. Snowden, like Jenkins, expects various non-law enforcement witnesses to be called to testify at the trial—if the co-defendants are tried in a joint trial and lay witnesses testify regarding a conversation between them and Jenkins, Snowden argues he would be unable to effectively deal with such testimony, unless Jenkins testified, which he cannot be forced to do. Therefore, Snowden argues, his Sixth Amendment right to confrontation would be compromised under Crawford.

Snowden further argues that his and Jenkins' defenses are irreconcilable because it is Snowden's position that he had nothing to do with the negotiations between Jenkins and the individuals who did the demolition and related work. Snowden argues that it was Jenkins who communicated with anyone and everyone in this matter, and therefore the inferences that could arise from testimony attributable to Jenkins, as a co-defendant and co-conspirator, would prejudice Snowden, especially if Jenkins does not testify. See People v. Warren, 20 NY3d 393 [2013], which held that severance was warranted because the co-defendant's attorney took an aggressive, adversarial stance against the other defendants, in effect becoming a second prosecutor, and eliciting "damaging evidence" not by the People, but by the co-defendant. Id., at 398.

Snowden also argues that if the defendants are tried jointly, the bulk of the evidence will be against Jenkins, not Snowden, but will necessarily taint the jurors' perception of Snowden. He argues that due to Jenkins' criminal history and recorded derogatory racial remarks an negative publicity, a joint trial will likely result in such remarks attributed to Snowden, just by virtue of a joint trial. Snowden also alleges that Jenkins is very disliked by many Sullivan County residents and Law Enforcement, and that such dislike may spill over onto Snowden, should there be a joint trial with jurors seeing both defendants at the same table.

The Prosecution's Argument

The Prosecution argues that "[w]here the proof against the defendants is supplied by the same evidence, only the most cogent reasons warrant a severance," citing, People v Bornholdt, 33 NY2d 75, 86 [1973], citations omitted, and that the proof in the instant matter is, indeed, supplied by the same evidence. They argue that the two-part test as set forth in Mahboubian, supra, requires severance when the core of each defense is irreconcilable and where there is significant danger that said conflict would lead a jury to infer a defendant's guilt. Id., at 184.

The Prosecution points out that severance is not required when there is hostility between defendants, differences in trial strategy, or inconsistencies in defenses. They correctly point out that it must appear that a joint trial necessarily will result in unfair prejudice to the moving party and substantially impair his defense. See People v Cruz, 66 NY2d 61, 73-74 [1985]. They argue that "It is axiomatic that [s]ome degree of prejudice is...inherent in every joint trial' [citations omitted] and that factor must be balanced against concerns for judicial economy and convenience of witnesses..." People v. Butler, 249 AD2d 630, 631 [3rd Dept. 1998].

In the case at bar, the Prosecution argues that neither defendant has met nor can they meet, the high burden set forth in Mahboubian or Cruz. They argue that neither Jenkins nor Snowden can demonstrate that the core of his defense is in irreconcilable conflict with the core of the defense of his co-defendant, and therefore, the first prong of Mahboubian cannot be met. They further point out that "differences in degree of guilty and possibly degree of notoriety" of defendants do not require separate trials. See United States v. Aloi, 511 F2d 585, 598 [2nd Cir. 1987]. The Prosecution points out that Defendant Snowden's submissions, through counsel, fails [*4]to set forth any argument from which he would be foreclosed at a joint trial; that upon said submissions, Defendant Snowden would actually benefit at a joint trial from the Prosecution's proof against Defendant Jenkins, because Snowden's anticipated defense is to argue that he played merely a supportive role, and such a defense would not be curtailed by a joint trial.

Discussion

While this Court acknowledges that severance is governed by many factors, including judicial economy, this Court opines that the arguments raised by both defendants support severance in the interest of judicial fairness at jury trial. At the outset, this Court finds both defendants' arguments regarding racial bias are insufficient to support a motion for severance. There are, however, clearly potential Sixth Amendment confrontation issues under Crawford, should the Prosecution call non-law enforcement witnesses to testify to out of court inculpatory statements made by either defendant. There is the potential for significant prejudice to Defendant Snowden from a joint trial due to a possible spillover effect of what Snowden claims will be the bulk of any incriminating evidence, which he argues is against Jenkins, who he asserts made all of the arrangements for the demolition and negotiated the contracts for the tear down and removal of the building, much of which will be presented in the form of testimony from lay witnesses.

Moreover, as Snowden argues, this Court is concerned about the realistic possibility of a jury attributing the negative publicity concerning Jenkins to Snowden, even with the best attempts to eliminate any potential prejudiced juror. The adverse and negative publicity associated with the co-defendant Jenkins is of Biblical proportions. For several years, Defendant Jenkins has been the subject of numerous newspaper, social media, radio and television reports regarding his antisocial behavior in Sullivan County and in his elected office as Mayor. See two articles attached as Appendix. The potential for "guilt by association" with Jenkins cannot be avoided in a joint jury trial with Snowden.

While Federal Appellate Courts have held, "differences and degree of guilt and possible degree of notoriety of the defendants do not require that there be separate trials," United States v. Aloi, 511 F2d 585. 598 [2nd Cir Ct App 1975], cert denied 423 US 1015 [1975]; United States v. Nersesian, 824 F2d 1294 [2nd Cir Ct App 1987], cert denied 484 US 957 [1987], it cannot be gainsaid that Defendant Mayor Jenkins has garnered extreme notoriety of a negative nature,[FN5] and that Snowden has NO notoriety. Based upon the co-defendant's negative notoriety alone, and in [*5]the sound discretion of a Trial Judge, severance is warranted in the interest of justice and to give the Defendant Snowden at a minimum a fair trial before his peers.

The defendant's allegations of racial bias, alone, are insufficient to support defendant's motion for severance.

The Prosecution's reliance on People v. Minor, 129 AD3d 1337 [3rd Dept. 2015] is misplaced. In the instant case, the proof of "benefit" against both defendants cannot be the same to the extent that the Prosecution has particularized Defendant Jenkins' "guilty benefit" as obtaining popularity to be re-elected, while that benefit is totally inapplicable to Defendant Snowden, who is the building inspector and a civil servant, appointed by the Village Manager.

The core issue in severance is fairness to the litigants and there can be no hard and fast rule for granting or denying severance. See People v. Cruz, supra.

To the extent that the Prosecution will be using statements of the defendant Jenkins, and or Snowden, in support of the Prosecution's theory of Conspiracy in the Fifth Degree, there is no Bruton Sixth Amendment confrontation issue in this case.

Therefore, under the circumstances of this case, and out of an abundance of caution, this Court will grant Defendants' joint motion for severance.

Based on the foregoing, it is

ORDERED that Defendants' joint motion for severance is granted; and it is further

ORDERED that Defendant Jenkins' trial will move forward first, jury selection to begin on December 3, 2015, at 9:30 am; and it is further

ORDERED that Defendants Snowden's trial is scheduled for jury selection to begin on or about January 11, 2016.

This shall constitute the Decision and Order of this Court.

DATED:November 30, 2015

Monticello, New York____________________________________

Hon. Frank J. LaBudaSullivan County Court Judge and Surrogate

Appendix:

Monticello Mayor Says He'll Appeal After Court Tosses Him From Office, http://newyork.cbslocal.com/2015/04/03/monticello-mayor-tearful-after-court-tosses-him-from-office/

Mayor of upstate new York town captured on video threatening police officers after drunk driving arrest, http://www.nydailynews.com/news/politics/mayor-upstate-new-york-town-captured-video-threatening-police-officers-drunk-driving-arrest-article-1.1528392 Footnotes

Footnote 1:ECL §71-2711, et seq.

Footnote 2:Jenkins in the former Mayor of the Village of Monticello, the Capitol seat of Sullivan County and was elected two times, first in 2008, and then again in 2012 by popular vote in contested elections. He was removed from office in March of 2015 by the State Appellate Division for various misconduct.

Footnote 3:The videotape was somehow published to the internet almost immediately after Jenkins' arrest.

Footnote 4:Although not to law enforcement, the Prosecution did not commit to no inculpatory statements from third parties.

Footnote 5:Mayor Jenkins has been the subject of a prior indictment resulting in a plea bargain to several misdemeanor convictions; an arrest for DWI and other offenses, leading to a misdemeanor conviction; arrest of an assault on a police officer, leading to a misdemeanor conviction; all of which appeared extensively in the local news media, radio, social media and TV. As far as publicity is concerned, Mayor Jenkins has been tried, convicted and hung in local news media on many occasions. See attached articles from the Times Herald Record, dated November 23, 2013, and April 3, 2015.