People v Buchanan

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People v Buchanan 2017 NY Slip Op 33333(U) June 22, 2017 Supreme Court, New York County Docket Number: 3229-16 Judge: Melissa C. Jackson Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] ./ SUPREME COURT OF THE STA TE OF NEW YORK COUNTY OF NE W YORK: PART 62 • - - - - - - - - -- - - • -- • - --- - - - - ••• ••• - -- • • •••• - • - • - --- - - - - • - - - - ••• X THE PEOPLE OF THE STATE OF NEW YORK DECISION AN D ORDER IND. # 3229-16 0024-17 - against - TIMOTHY DUCHANAN, Defendant. - - --- - - - - - - - -- - --- - - - - -- - - -- -- - -- - - -- - - - - - - - - - - • -- • - •• -- -- - - X Melissa C. Jackson, J.: The alleged facts underlying the crime charged under Indictment# 0024- 17 are that the defendant on July 17, 20 I 6 unlawfu ll y entered into a residenti al building and was seen leaving the building carrying a garbage bag all eged ly filled with sto len property taken from the lobby area of the build ing. The alleged facts und erl yi ng the crimes charged under Indi ctment# 3229- 16 are that the defendant on Jul y 24, 20 16 unlawfully entered into a residential building and was seen leaving the building carrying a bicycle that did not belong to him. Furthermore, the Peop le allege that on Jul y 27, 2016 defendant is seen unl awfull y entering a residential building and later confronted by the coh1plaini bg witness from the earlier theft of the bicycl e. After being confronted, defendant flees and is caught inside Morningside Park by the co mplaining witness and poli ce and a bag is recovered from the defendant containing hypodermic needles, bolt cutters and a package belonging to the compla in ing witness who pursued the defendant. In January 20 l 7, the People moved for consolidation of both Indictme nts arguing that conso lidation was proper since the crimes charged in both Indictments were the same or similar in Jaw and that such evidence taken together as a whole would be critical to identifying the defendant as the perpe trator of these burglaries. Furthermore, the Peop le argued that the consolidated evidence would explain the narrative and context of defendant's custody on Jul y 27 th [* 2] On March 23, 2017, the Court ordered the Indi ctments conso lid ated for trial. Defendant now moves to sever Count One from Counts Two throu gh Ten under ln clictmcnt# 3229-1 6. In add ition, the defendant further requests severance of Counts Two through Ten 01 lndictment# 3229-16 with that of the so le count under Indictment# 0024-17. Severance of Count One from all other counts on Indi ctment# 3229-16 The defendant seeks to sever Count One from the other counts of lndiclment# 3229-16 on the gro und s that as to Coun ts Two through Ten there is substantia l ev idence supporting a findin g of 11 guilt as to the July 2i burglary but less substantial evidence supporting the Jul y 24 th burglaryhence co nso lid ation is unduly prejudicial to the defendant. The defendant contends that if he is jointly tried as to both burglaries, a jury wi ll conflate evidence from the July 27th burgl ary and apply it to evidence offered to prove defendant's guilt regarding the July 24 th burglary. For the following reasons, the defendant's motion to sever Count One from the other counts ofindictment# 3229-16 is denied. CPL 200.20(3) states in pertinent part: '3. In any case where two or more offenses or groups of offenses chnrged i11 an Indictment# are based upon different criminal tran sactions, and where their joinability rests so lely upon the fact that such offenses, or as the case may be at least one offense of each group, are the same or similar in law. Jhe court, in the interest of justice and for good cause shown, may, upon application of either a defendant or the people, in its discretion, order that any such offenses be tri ed separately from the other or othe rs thereof. Good cause shall include but not be limited to si tuations where there is: (a) Substantially more proof on one or more such joi nab le offenses than on others and there is a substantial likelihood that the jury would be unabl e to co nsid er separately th e proof as it relates to each offense." [emphasis added) The People claim that evidence in both cases will consist of sur ve ill ,rn ce footage showing defendan t entering and leav in g the res idential buildin gs wi th stolen property. It is important to [* 3] note that the substantia l difference in the evidence between the two burglaries is that the defendant is arrested follm-ving the alleged July 27 th burglary and fo und to be in possession of bolt cutters, hypodermic needles and sto len properly. As to the alleged July 24 th burglary, the bicycle is neve r recovered from the defendan t so th e sole issue is whether or not the defendant is 1he person on the video surveillance as there are no eyewitnesses. The Court has taken into co nsiderat ion th e: fact that the burglaries are committed three clays apa rt from one ano the r and at buildings located directly adjacent to each other. Furthermore, there is no reason to believe that the surveillance footage of the Jul y 24 th burglary is any less substantial than the People's evidence of defendant's alleged commission of th e July 27 th burglary. Furthermore, and even more compel ling is the fact 11/at the complaining witness in the July 24 th burglary is the same complaining witness in th e July 27 th burglary. The two cases were properly charged under a single indi ctment. There is no reason to believe that there is a substant ial likelihood a jury will connate th e ev id ence of the two burglaries rendering them unable to consider separately the proof as it relates to each offense. The cases are simple. The evidence to be presented by the Peop le is not complex nor can the Court I' conclude that there is "substantia ll y more proof' of one offense over th e other simply because stolen property was recovered from the defendant in one case and not the oth er. For the forego ing reasons, the defendant has failed to demonstrate in the interests of justice and for good cause t I. shown 1vhy the counts under Indictment# 3229-16 should be severed. Severance of Cou nts Two through Ten on Indi ctment# 3229- 16 from Indictment# 0024-17 The defendant's argument in support of severance of the lnclictrnents is identical to that made in his first severance motion. Similarly, the defendant contends that the amount of evidence of the Jul y 27 th burglary is so substantial and overwhelm ing that there is a substan ti al likelihood that the jury would be unable to consider separate ly the proof as it relates lo ench offense and therefore I [* 4] would be unable to receive a fair trial with regard to the July 17, 2016 burglary. The 11 People's evidence with regard to the July i 7' burglary consists mostly of surveillance footage allegedly showing defendant unlawfully entering into a residential building and leaving with a ga rbage bag fill ed with stolen property. f The Court aga in will not engage in conjecture and ,u·bitrarily measure the quantum of proof that the su rve illan ce footage of the Jul y J 7' 11 burglary depicts. The evidence is sim ple and there is only one count under Jndictment# 0024-1 7 for the jury to consider. This is distingu ishable from the facts of People v. Sable, I 38 AD2d 234 [ I st Dept l 988) which defendant cites fo r the proposition that these matters should be seve red. 1 Conclusion Tri al courts should weigh public interest in avoiding duplicative, lengthy , and expensive trials against defendant's interest in being protected fro111 unfair cl isadvant nge in m::iking decision whether to consolidate lndict111ents." People v. Gonzalez, 229 A.D. 2d 398 [2 11 <1 Dept I 996j. In Peop le v. Lane, 56 N. Y .2d l ( 1982), the Co urt of Appeals held that "[t)rial courts should ,, general ly weigh the public interest in avoiding dupli cati ve, lengthy and expensive tria ls against the defendan t's interest in being protected from unfair disadvantage. The People intend to introduce distinct and separa te evidence fo r each burglary. There is no reaso n to believe that a jury canno t credit or disc red it the People's theory as to the identity of the perpetrator of each residential burglary. The court has carefully considered the argu111ents o[ the parties and more importantly has examined the defendant's fu nd amen tal right to rece ive a fair trial without undue prejudice and finds that the need fo r exped itious justice, judicial economy, maxi111um use of scarce court and jury 1 In Sable, which was reversed on unrelated grou nd s, defendan t went to tri al on 35 robbery counts covering seven separate robberies. The Appe ll ate Division found this to be error in light of th e fact th at as to some of the charges there was '"[s]ubstantially more proof on one or more such joinable offe nses than on others and there I was] a 'substantial likelihood 1ha1 th e jury would be unable to consider separa tel y the proof a, it relates 10 each offense'" The Appellate Division did 1101 specify how th e proof was substan ti nl as 10 one offense as compared 10 the other [* 5] resources, and the perceived benefit to al l parties that will be ac hi eved by hav ing a consol idated trial grea tly outweighs any remote speculative chance of prejudice to the defendant. The foregoing is th e deci sion and order of th e court. Dated: New York, New York June 22, 20 17 I I

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