[*1]
People v Valentine
2012 NY Slip Op 52038(U) [37 Misc 3d 1215(A)]
Decided on October 26, 2012
Criminal Court Of The City Of New York, Kings County
Wilson, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 26, 2012
Criminal Court of the City of New York, Kings County


The People of the State of New York, Plaintiff,

against

Lucas Valentine, Defendant.



The People of the State of New York,Plaintiff, -against-

against

Bernard Galvez, Defendant.




2012KN014088



Appearances:

For the People, Charles J. Hynes, District Attorney, Kings County, by Katarina Galic, Esq., Assistant District Attorney.

For the Defendant Lucas Valentine, Scott Hammer, Esq.

For the Defendant Bernard Galvez, Hela Levi, Esq., Brooklyn Defender Services.

John H. Wilson, J.



Under docket number 2012KN014088, Defendant Lucas Valentine is charged with Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs (PL Sec. 1192(1)), a [*2]traffic infraction.[FN1]

Under docket number 2012KN014467, Defendant Bernard Galvez is charged with 2 counts of Criminal Mischief in the Fourth Degree (PL Sec. 145.00), a Class A misdemeanor; two counts of Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs (VTL Sec. 1192(2) and 1192(3)), both unclassified misdemeanors; and one count of Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs (VTL 1192(1)), a traffic infraction.[FN2]

By motion dated July 25, 2012, the People seek to consolidate these matters pursuant to CPL Sec. 200.20.

The Court has reviewed the Court files, the People's motion, and the response of Defendant Glavez dated October 9, 2012. Defendant Valentine did not file a separate Response, instead joining in the Response filed by Defendant Glavez.

For the reasons stated below, the People's motion to consolidate is denied.

STATEMENT OF THE FACTS

On February 18, 2012, in front of 95 Saratoga Avenue, Brooklyn, New York, Police Officer Steven Szymczak observed Defendant Glavez behind the wheel of a 2000 Kia Sportage. The Officer observed Defendant Valentine standing outside the vehicle. He also observed "a fire hydrant laying on the ground, damage to a parked vehicle, and damage to a privately owned fence." See, Criminal Court complaint for docket number 2012KN014467.

Defendant Glavez reportedly stated that he "was not driving, just backing up." See, Criminal Court complaint for docket number 2012KN014467. Defendant Valentine reportedly stated, "I was the one driving, I just closed my eyes." See, Criminal Court complaint for docket number 2012KN014088.

THE MOTION FOR CONSOLIDATION MUST BE DENIED

Under CPL Sec. 200.20 (2)(a), two offenses may be joined if they are "based upon the same act or upon the same criminal transaction." There is no doubt that the incident alleged in both dockets before the Court each arise out of the same act or criminal transaction. Further, public policy favors joinder of charges for trial, even when they arise out of different criminal [*3]transactions, "because it expedites the judicial process...and avoids the necessity of recalling witnesses." See, People v. Mahboubian, 74 NY2d 174, 183, 544 NYS2d 769 (1989).

However, consolidation is a matter within the discretion of the court. "The test, which is fact specific, requires the court to foretell whether granting of consolidation or denial of severance will result in a situation that causes undue prejudice at trial." See, People v. Lane, 56 NY2d 1, 7-8, 451 NYS2d 6 (1982); People v. Dean, 1 AD3d 446, 767 NYS2d 114 (2d Dept., 2003). Here, there would be prejudice to each Defendant if joinder of these two matters is allowed.

At the scene of the accident, Defendant Glavez stated that he "was not driving, just backing up." See, Criminal Court complaint for docket number 2012KN014467. By this statement, Defendant Glavez was disavowing any involvement in the accident. Defendant Valentine is then reported to have stated, "I was the one driving, I just closed my eyes." See, Criminal Court complaint for docket number 2012KN014088.

As Defendant Glavez correctly asserts, "Mr. Glavez has reason to believe that if called to testify on his behalf, Mr. Valentine would provide testimony tending to exculpate him...(h)owever, Mr. Valentine's Fifth Amendment privilege against self-incrimination would prevent such testimony, thereby denying Mr. Glavez from presenting exculpatory evidence in defense of the charges against him." See, Defendant Glavez's motion dated October 9. 2012, p 4, para 11.

Further, "if the cases are tried jointly, and Mr. Glavez chooses to testify in his defense, he will essentially be a witness for the prosecution against Mr. Valentine." See, Defendant Glavez's motion dated October 9. 2012, p 4, para 12.

Under these circumstances, the antagonistic defenses of each Defendant would cause prejudice to each Defendant if these cases were jointly tried. See, People v. Gonzalez, 16 Misc 3d 1138(A), 851 NYS2d 60 (Crim Ct, Kings Cty, 2007); Mahboubian, 74 NY2d at 186 ("this conflict of defenses...created the sort of compelling prejudice that could have been avoided by the grant of the requested severance.")

Therefore, consolidation of Docket number 2012KN014088 and Docket number 2012KN014467 is denied.

All other arguments advanced by the parties have been reviewed and rejected by this court as being without merit.

This shall constitute the opinion, decision, and order of the Court. [*4]

Dated: Brooklyn, New York

October 26, 2012

_______________________________Hon. John H. Wilson, JCC

Footnotes


Footnote 1: Defendant Lucas Valentine was initially also charged with Criminal Mischief in the Fourth Degree (PL Sec. 145.00), a Class A misdemeanor, however, that charge was dismissed pursuant to CPL Sec. 30.30 on May 31, 2012.

Footnote 2: Defendant was initially charged with two additional counts of Criminal Mischief in the Fourth Degree, however, these charges were dismissed pursuant to CPL Sec. 30.30 on May 31, 2012.