Defendant, Nigel Parry, was arraigned on January 25, 2007 on misdemeanor charges of stalking in the third degree (PL  120.50[3]) and aggravated harassment in the second degree (PL  240.30), docket number 2007NY007650. Defendant was subsequently arraigned on May 1, 2007 on charges of stalking in the third degree (PL  120.50[3]), but the offense is alleged to have been committed against a different complaining witness, docket number 2007NY033713.

The People have moved to consolidate the two cases pursuant to CPL  200.20(2). In addition to allowing joinder when two offenses are based upon the same act or same criminal transaction, CPL  200.20(2) permits offenses to be consolidated for trial when proof of one offense would be material and admissible as evidence in chief upon the trial of the other offense (CPL  200.20[2][b]) or when the offenses charged in separate indictments are defined by the same or similar statutory provisions (CPL  200.20[2][c]) CPL  100.45 provides that, where appropriate, CPL  200.20 shall apply to misdemeanor complaints.

DISCUSSION

A strong public policy favors joinder, as it expedites the judicial process, reduces court congestion and avoids the necessity of recalling witnesses. To obtain consolidation the applicant must demonstrate to the satisfaction of the court not only that the offenses charged in the separate indictments are joinable in accordance with the statutory criteria set forth in CPL 200.20 [*2](subd 2) but also that combination for a single trial is an appropriate exercise of discretion (CPL 200.20, subd 4) People v Lane, 56 NY2d 1 (1982). Trial courts should weigh the public interest in avoiding duplicative, lengthy and expensive trials against the defendant's interest in being protected from unfair disadvantage. (Ibid.). To overcome the motion for consolidation, the defendant must persuade the court that the offenses are joinable only under CPL 200.20(2)(c) and must also provide the court with good cause as to why trying the offenses separately would better serve the interest of justice (CPL 200.20, subd 3). If the court determines that the separate charges are properly joinable pursuant to 200.20(2)(b), the court lacks statutory authority to sever under CPL 200.20(3), which applies where joinability rests solely upon the fact that the charged offenses are the same or similar in law (People v Bongarzone, 69 NY2d 892. 895).

The People submit that evidence from each of the instant cases is admissible as evidence in chief in the other to demonstrate defendant's intent to annoy, harass and alarm each complainant: The factual part of the accusatory instrument alleges that defendant carried on a similar course of conduct regarding the two complaining witnesses: numerous e-mailings, phone calls and letters from defendant to each complainant after repeated requests to stop. Defendant made reference to one complainant in communications to the other. The People further allege that defendant sometimes sent joint e-mails to the two complainants.

Defendant cross-moves to oppose consolidation. Defendant posits that statements allegedly made by defendant to each complainant would not be admissible in the other matter to show defendant's state of mind because none of the statements themselves evidence defendant's intent to harass, annoy or alarm the complainants. Defendant also states that it would not be in the interest of justice for the People to introduce evidence of the other matter in either trial because such evidence would highly prejudicial to defendant and would run afoul of the Molineux rule. As a general matter, a person may not be convicted of one crime based upon proof of another (see e.g., People v. Molineux, 168 NY 264, 291-293). Defendant conjectures that even with a limiting instruction from the court, a single jury presented with evidence of separate crimes is unlikely to be able to properly separate and segregate the evidence as to each charge.

CONCLUSION

This court finds that much of the evidence that the People will need to introduce for each case will certainly be duplicative in that the evidence regarding the sending of e-mails and the making of telephone calls and the proof that it was defendant who sent the e-mail or made the telephone calls will be the same or similar in each case. In addition, although the two complaints arise from separate and distinct transactions, proof concerning the acts alleged under one accusatory instrument may be admissible under the other to explain defendant's relationship to the two complainants, to show defendant's possible motive and intent and to establish the common modus operandi used by defendant. Prince, Richardson on Evidence,  4-504 (11th Edition, 1995) supports the People's contention that evidence from each of these cases would be admissible as evidence in chief in the other case:

... proof of intent' is often unobtainable except by evidence of successive repetitions of the act' (People v Schwartzman, 24 NY2d 241, 1969)

New York, NYDena E. Douglas

Judge of the Civil Court