Both Defendants were charged with Assault in the Third Degree, Menacing in the Second Degree, Harassment in the Second Degree, Reckless Endangerment in the Second Degree, and Criminal Possession of a Weapon in the Fourth Degree.

The People move to join Defendants in the above-referenced dockets into one consolidated docket pursuant to CPL 200.40 because the crimes charged against both Defendants are identical and arise out of the same act and transaction. It is alleged that Defendants assaulted the complaining witness, punched her and shoved her to the ground. It is further alleged that Defendant Gonzalez commanded his dog to attack the complaining witness. In its memorandum the People move for joinder and consolidation by asserting that both Defendants are charged with the same alleged offenses and the charges are based on a common scheme or plan involving the same criminal transaction. Further, the People maintain that joinder would serve judicial economy.

In his opposition Defendant Gonzalez argues that joinder and consolidation would be unduly prejudicial to him because he and Defendant Gvelesiani may take conflicting positions creating a risk of antagonistic defenses. In support of this contention Defendant Gonzalez cites People v. Rodriquez, 91 AD2d 591, 451 NYS2d 268 (1st Dept. 1982), which reversed a trial court decision to consolidate cases involving two defendants because of undue prejudice to one of the defendants. However, Rodriquez is distinguishable from the instant matter because the "undue [*2]

prejudice" involved the co-defendant's attorney being able to cross-examine the "prejudiced" defendant about prior convictions based on the trial court's pre-trial Sandoval ruling. No such argument has been proffered in the instant matter; the only basis for his argument is some assertion of a vague possibility of antagonistic defenses.

Severance is not required simply because there may be antagonistic defenses between co-defendants. Only in those circumstances in which the defenses are so irreconcilable would joinder be impermissible. See People v. Golden, 23 AD3d 266, 804 NYS2d 74 (1st Dept. 2005). Defendant Gonzalez has not even alleged the nature of the potential arguments that might give rise to a claim of antagonistic defenses. Further, whether to join or sever cases is in the discretion of the court, and will only be overturned if there is an abuse of discretion. People v. Bornholdt, 33 NY2d 75, 350 NYS2d 369 (1973).

Conversely, Defendant Gvelesiani argues in her memorandum in opposition to the People's motion to join and consolidate that she too would suffer undue prejudice if the dockets were consolidated. The basis of her contention is that the dog that attacked the complaining witness belonged to Defendant Gonzalez, the one who allegedly ordered the dog to attack, whereas Defendant Gvelesiani is only alleged to have punched the complaining witness. Defendant Gvelesiani asserts that a jury would not be able to distinguish injuries purportedly resulting from her alleged punches from those resulting from the canine's attack. Defendant Gvelesiani presents no judicial decisions on this point to bolster her reasoning.

When several persons are alleged to have acted in unison, merely because it might be difficult for the trier of fact to distinguish which defendant caused which injury is an insufficient reason to deny a motion to join defendants. In People v. Pena, 251 AD2d 66, 673 NYS2d 688 (1st Dept. 1998), the court permitted a trial of multiple co-defendants where the group was alleged to have attacked a homeless person. As the court stated in People v. Mahboubian, 74 NY2d 174, 544 NYS2d 769 (1989), when persons are charged with committing crimes in concert, joinder is appropriate because it expedites the judicial process, reduces court congestion, and avoids the necessity of recalling witnesses.

CPL 200.40(1)(a) states that defendants may be joined and cases consolidated if they are based on the same act or upon the same criminal transaction resulting from a common scheme or plan. "Severance of charges is discretionary and will be granted only if a defendant can persuade the court that it should be granted in the interests of justice and for good cause shown." People v. Lowe, 91 AD2d 1100, 458 NYS2d 357 (3d Dept. 1983). Defendants have failed to demonstrate that the dockets are not joinable or to persuade the court by apposite judicial decisions that severance should be granted in the interests of justice. People v. Lane, 56 NY2d 1, 451 NYS2d 6 (1982). Therefore, since the court has the discretion to join cases for judicial economy, the court is inclined to do in this instance. People v. Mahboubian, supra .

The court grants the People's motion. The above-cited dockets are hereby ordered [*3]consolidated for trial.

Dated: September 14, 2007

__________________________

EILEEN N. NADELSON, J.C.C.