Defendant is before the court on three separate accusatory instruments. The People move to consolidate for trial the above dockets, pursuant to CPL § 200.20. The defendant opposes. For the reasons that follow, the motion to consolidate is denied.

Under Docket No. 2006NY081376 (the "first case"), the defendant is charged with Criminal Possession of Marihuana in the Fifth Degree (P.L. § 221.10[1]). It is alleged that on November 28, 2006, at 547 West 160th Street in Manhattan, a police officer from the 33rd precinct recovered a large bag containing "17 individual bags of marijuana which defendant had possessed in a public place and open to public view from the defendant's crotch area of his pants."

Under Docket No. 2007NY015573 (the "second case") the defendant is charged with one count of Criminal Possession of Marihuana in the Fifth Degree (P.L. § 221.10[1]) and one count of Unlawful Possession of Marihuana (P.L.� 221.05). The accusatory instrument alleges that on February 23, 2007, at the corner of 163rd Street and Broadway in Manhattan, the defendant was observed by a police officer assigned to the "Patrol Boro Queens North Street Crime Unit" holding "one bag of marijuana in a public place and open to public view." The instrument further alleges that another bag of marihuana was recovered from the false bottom of a can where the defendant was observed placing it.

Under Docket No. 2007NY021395 (the "third case"), the defendant is charged with Criminal Possession of Marihuana in the Fifth Degree (P.L. § 221.10[1]). The accusatory instrument alleges that on March 8, 2007, at Amsterdam Avenue and West 160th Street in Manhattan, the defendant was observed by a police officer of the "Gang Unit Manhattan" "holding marijuana in a public place and open to public view" and that three bags of marihuana were recovered from the defendant's coat pocket.

Pursuant to CPL § 100.45[1] and § 200.20[4], a court may consolidate separate misdemeanor accusatory instruments for purposes of trial. Consolidation is permissive and "committed to the sound discretion of the trial judge in light of the circumstances of the individual case." People v Lane, 56 NY2d 1, 8 [1982]. In exercising their discretion, "[t]rial courts should generally weigh the public interest in avoiding duplicative, lengthy and expensive trials against the defendant's interest in being protected from unfair disadvantage. Id at 8. In general, "compromise of a defendant's fundamental rights to a fair trial free of undue prejudice as [*2]the quid pro quo for the mere expeditious disposition of criminal cases will not be tolerated." Id.

CPL § 200.20[2] provides, in pertinent part, that two offenses are joinable when:

(a) They are based upon the same act or upon the same criminal transaction, as that term is defined in subdivision two of section 40.10; or

(b) Even though based upon different criminal transactions, such offenses, or the criminal transactions underlying them, are of such nature that either proof of the first offense would be material and admissible as evidence in chief upon a trial of the second, or proof of the second would be material and admissible as evidence in chief upon a trial of the first; or

(c) Even though based upon different criminal transactions, and even though not joinable pursuant to paragraph (b), such offenses are defined by the same or similar statutory provisions and consequently are the same or similar in law.

On a motion to consolidate offenses for a single trial, the burden is on the movant to "demonstrate to...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 (sub. 2) but also that combination for a single trial is an appropriate exercise of discretion." People v Lane, supra,at 7.

The People allege that the three dockets are joinable pursuant to CPL § 200.20[2][a] and [c]. First, the People argue that, with respect to Dockets 2007NY015573 and 2007NY021395, while the charges arose from defendant's possession of marihuana on different dates, the dockets are joinable pursuant to CPL § 200.20[2][a] because the defendant's acts are part of the same criminal transaction, as defined by CPL § 40.10[2][b]. The People then argue that since defendant is charged with one count of Criminal Possession of Marihuana in the Fifth degree in each of the above dockets as well as in Docket No. 2006NY081376, consolidation is warranted pursuant to CPL § 200.20[2][c]. Finally, the People argue that joinder of the three dockets is an appropriate exercise of the court's discretion because a joint trial would relieve the burden on witnesses, which in each case consists of an arresting officer and a chemist, and would relieve the Court's calendar without prejudicing the defendant.

In opposition, defendant argues that the cases should not be consolidated because the People have not satisfied the requirements for consolidation under CPL § 200.20[2]. Specifically, defendant claims that the People have failed to show that the second and the third cases arose out of the "same criminal transaction" so as to justify consolidation pursuant to CPL § 200.20[2][a]. Defendant further argues the cases should not be consolidated pursuant to CPL § 200.20[2][c] because (1) a joint trial of the cases would discourage the jurors from considering separately the proof as it relates to each case, that is, proof of one offense may suggest to the jury that the defendant committed the other offense, thus substantially prejudicing the defendant; (2) the proof is different and weaker in the second case in which the defendant is accused of "constructively" possessing marihuana as opposed to the third case where he is accused of physically possessing it; and (3) the defendant would want to testify in the second case, in which the proof is weaker, but not in the third. Consolidation, would "require" him to testify as to the incident in the third case and/or subject him to cross-examination regarding that incident, defendant argues.

[*3]Consolidation Pursuant to CPL § 200.20[2][a]

Consolidation of the three dockets in this case is not appropriate for several reasons. First, the People have failed to show that the incidents described in the second and the third cases are part of the same criminal transaction as that term is defined in CPL § 40.10[2][b]. Under that subdivision, two or more acts constitute a criminal transaction if they are "so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture." Id. In People v Duggins, 3 NY3d 522, 531-532, 533 [2004], the Court of Appeals held that in order to meet the definition of "single criminal venture" of this subdivision, the acts must have "motivational" unity or linkage. In Duggins, the court found that two homicides committed by defendant within a 90-minute spam constituted a single criminal venture where the evidence showed that defendant killed the two individuals because he believed that both of them were prepared to carry out a contract to kill him. The court found that the defendant in both killings was "fueled by a common motivation." Id at 534.

In this case, the incidents alleged in the second and third cases occurred two weeks apart and at different locations. In addition, the two incidents do not appear to have been uncovered as part of an investigation into a "single criminal venture" as they were witnessed by two different officers from different precincts or units. Simply, there does not appear to be a unity or linkage of motivation in the possession of contraband in these two incidents. The court, therefore, finds that the acts that gave rise to the charges in the two cases are not so closely related "in purpose and objective" as to constitute elements or integral part of a single criminal venture. CPL §40.10[2][b]. More of a connection between the different acts is needed to show a related purpose and objective. See, People v Abbamonte, 43 NY2d 74 [1977](several acts of possession and sale of drugs on different dates were part of a single criminal venture where they were part of a single persisting criminal enterprise to purvey dangerous drugs uncovered by one law enforcement investigation); Matter of Abraham v Justices of NY Supreme Ct. of Bronx County, 37 NY2d 560 [1975](same); Matter of McNell v Roberts, 74 NY2d 513 [1989](several thefts from the same companies were integral part of single criminal venture); People v Hemsley, 170 AD2d 209 [1st Dept. 1991](acts committed during a four-year period by which defendants falsely claimed personal expenses- incurred in the renovation and decoration of defendants' homes - as business expenses of their entities, and thus passing those personal expenses to the taxpayers, were so closely related in criminal purpose and objective as to constitute elements or integral parts of a single criminal venture); People v Vesprey, 183 AD2d 212 [1st Dept. 1992](act of using a stolen credit card to purchase merchandise and act of purchasing stolen credit cards three months later not closely related in criminal purpose or objective so as to constitute single criminal transaction); People v Lennon, 80 AD2d 672 [3rd Dept. 1981](larceny of antique tins closely related in purpose and objective to criminal possession of same tins as to constitute a single criminal venture); Braunstein v Frawley, 64 AD2d 772 [3rd Dept. 1978](possession with intent to sell numerous items of obscene materials in a store on different dates constitutes a single criminal venture); People v Gross, 100 Misc 2d 617 [Sup. Ct. NY Co., 1979](criminal sale of heroin that was retrieved from a stash in a hole in a wall, closely related in criminal purpose and objective to criminal possession of the heroin in that stash so as to constitute single criminal venture); People v Fletcher, 113 Misc 2d 5 [Sup. Ct. NY Co., 1982](course of conduct alleged - entering a doctor's office and stealing drugs and personal property - closely related in criminal [*4]purpose so as to constitute a single criminal venture even though defendant was charged with burglary and grand larceny in an indictment and, separately, with criminal possession of stolen property, criminal possession of a controlled substance and criminal possession of hypodermic needle in a misdemeanor complaint).

Consolidation Pursuant to CPL § 200.20[2][c]

As the People argue, since the defendant is charged with violating the same or similar statutory provisions in the three dockets in this case, the cases could be consolidated pursuant to CPL § 200.20[2][c]. Because there is "inherent prejudice" in the joinder of similar, though unrelated, crimes under this subdivision, however, a defendant may avoid consolidation sought by the People pursuant to this subdivision by showing good cause, and the court, in the interest of justice, may deny consolidation. People v Capitello, 139 Misc 2d 618 [County Ct. Suffolk Co. 1988]; CPL §200.20[3]. In addition, as stated above, all applications for consolidation are committed to the sound discretion of the court. People v Lane, supra at 8.

This court agrees with defendant that consolidating these three separate incidents for trial would not be a proper exercise of the court's discretion. Exposing the trier of fact to evidence that the defendant possessed marihuana on three different occasions could suggest a general propensity to commit the offense charged in each case. It is conceivable, if not likely, that the aggregate weight of the evidence presented, if the cases were tried together, would unduly prejudice the defendant and deprive him of a fair trial. See, People v Lane, supra.

In addition, the contention that joinder of the dockets would relieve the burden on witnesses and would avoid a duplicative, lengthy and expensive trial is unsubstantiated, since none of the cases involve the same police officer, whose testimony would be duplicative over three trials. Further, the trials will be neither lengthy nor expensive: these will be bench trials as the defendant is not entitled to a jury trial in any of these cases (PL §70.15[2]; CPL § 340.40[2]); the issues and proof appear to be simple; and the trials will be short, involving at the most two or three witnesses. See, People v Nembhard,14 Misc 3d 1238(A) [Crim Ct. NY Co. 2007](finding no need to consolidate two cases involving different witnesses where the proof is relatively simple, each trial would be non-jury, and each trial would take up only a small portion of the court's time). In fact, if the objective is to expedite the disposition of these cases, it could prove to be more onerous to coordinate the schedules of all the different witnesses in the three cases for a single date, than to schedule three different short trials for three different dates.

For the reasons stated above, the People's motion to consolidate these three dockets for the purposes of trial is denied.

This opinion constitutes the decision and order of this Court.

________________________________

Hon. Rita Mella

Judge of the Criminal Court

Dated: September 25, 2007