Criminal Court of the City of New York, Bronx County, November 30, 2018

Darcel D. Clark, District Attorney, Bronx (Sarah Zuckerman of counsel), for plaintiff.

Legal Aid Society, Bronx (Melissa De Jesus of counsel), for defendant.

Defendant is charged under docket No. 2018BX019330 with assault in the third degree (Penal Law § 120.00 [1]) based on an alleged incident which occurred on May 25, 2018, at approximately 11:47 a.m. inside of 1500 Waters Place, the Bronx Psychiatric [*2]Center, in the county of the Bronx. Informant D.G. alleged that he saw defendant strike the complainant, A.C., in the mouth with a closed fist causing him to fall on the floor. Informant D.G. alleged that he saw defendant kick A.C. in the mouth, back and buttocks area and as a result of defendant's actions, he suffered a laceration to his lower lip, swelling, bleeding and redness.

Defendant is charged under docket No. 2018BX024804 with assault in the third degree (Penal Law § 120.00 [1]) and harassment in the second degree (Penal Law § 240.26 [1]) based on an alleged incident which occurred on July 18, 2018, at approximately 6:05 p.m. inside of 1500 Waters Place in the County of the Bronx. The complainant, J.C., alleged that while he and defendant were both patients at the Bronx Psychiatric Center defendant struck him about the right side of the face with a closed fist multiple times. The complainant further stated that as a result of defendant's actions he suffered substantial pain, redness, bruising, soreness and swelling to the right side of his face.

Defendant is charged under docket No. 2018BX024803 with assault in the third degree (Penal Law § 120.00 [1]) and harassment in the second degree (Penal Law § 240.26 [1]) based on an alleged incident which occurred on July 19, 2018, at approximately 11:08 a.m. inside of 1500 Waters Place in the County of the Bronx. The complainant, A.M., alleged that he and defendant, who were both patients at Bronx Psychiatric Center, engaged in a verbal dispute, at which point, defendant{**62 Misc 3d at 611} struck him in the facial area with a closed fist. The complainant further stated that as a result of defendant's conduct he suffered an abrasion, substantial pain, redness and soreness to his forehead.

Defendant is charged under docket No. 2018BX024805 with attempted assault in the third degree (Penal Law §§ 110.00, 120.00 [1]) and harassment in the second degree (Penal Law § 240.26 [1]) based on an alleged incident which occurred on July 19, 2018, at approximately 1:07 p.m. inside of 1500 Waters Place, in the county of the Bronx. P.O. Everal Pratt alleged that he observed the complainant, N.C., who, like defendant, was a patient at the Bronx Psychiatric Center, fall to the ground and defendant strike him in the facial and head area with his fist multiple times. P.O. Pratt further observed defendant step on the complainant's head pressing it against the ground and as a result thereof the complainant received stitches to his head.

The People now move to consolidate the four dockets pursuant to CPL 200.20 (2) (a) and 100.45. Specifically, the People claim that defendant's actions constituted a "single criminal transaction" in that each alleged incident occurred at the same location, close in time and each case involved defendant's assault on a fellow patient at the Bronx Psychiatric Hospital. The People further contend that the evidence for each of the crimes is of equal weight. Finally, the People assert that the judicial economy accomplished in consolidating the dockets outweighs any potential prejudice to defendant.

Defendant, in opposition to the People's motion, contends that there is no basis under the Criminal Procedure Law to properly join any of the charges. Defendant further asserts that his actions do not constitute a single criminal transaction inasmuch as there is no "common motivation" in his conduct since the People do not allege that there is a connection between each of the separate complainants or offer evidence as to what prior relationships defendant had with them. Additionally, defendant argues that he would suffer extreme prejudice if the dockets were consolidated noting that the cases could not be offered as Molineux evidence against him. Finally, defendant contends that consolidation will have a chilling effect on his decision to testify about any of the charges.

After reviewing the submissions of the parties and the relevant law the People's motion is decided as follows:

CPL 200.20 (2) (c) provides that offenses are joinable when, "[e]ven though based upon different criminal transactions, and {**62 Misc 3d at 612}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."

It is well settled that consolidation is subject to the court's sound discretion considering the particular circumstances of the case, the public's interest in avoiding duplicative, lengthy and expensive trials and the defendant's interest in being protected from unfair disadvantage (see People v Bongarzone, 69 NY2d 892 [1987]; People v Lane, 56 NY2d 1 [1982]; People v Gonzalez, 229 AD2d 398 [1996]; People v Krasnici, 2001 NY Slip Op 50125[U] [Crim Ct, Kings County 2001]).

The Court of Appeals has held that "[w]hile the trial courts must be afforded reasonable latitude in exercising discretion in these matters, we emphasize that compromise of a defendant's fundamental right to a fair trial free of undue prejudice as the quid pro quo for the mere expeditious disposition of criminal cases will not be tolerated" (People v Lane, 56 NY2d at 8 [emphasis omitted]).

Further, joinder pursuant to CPL 200.20 (2) (c) is "one only of convenience, usually to the State, and, notwithstanding instructions to the jury to compartmentalize the evidence relating to each of the separate criminal incidents being tried, there is a real danger that evidence relating to one crime will improperly affect consideration of the . . . others" (People v Yee, 94 Misc 2d 628, 630 [1978]).

Here, although joinder of the charges in the four dockets is statutorily permissible pursuant to CPL 200.20 (2) (c) inasmuch as they are "defined by the same or similar statutory provisions and consequently are the same or similar in law," the People have failed to establish that consolidation would be a proper exercise of this court's discretion in light of the extreme prejudice defendant will face during a single trial (see People v Lane; People v Vigueras, 47 Misc 3d 1229[A], 2015 NY Slip Op 50889[U] [2015]).

Each of the four cases involves a different complainant, alleging essentially identical criminal conduct, specifically striking each person in some manner at the same psychiatric facility. Therefore, given this similarity there is great likelihood that the cumulative weight of the proof presented here gravely prejudices defendant in that it depicts him as having a propensity to engage in assaultive behavior (see People v Daniels, 216 AD2d 639 [1995] [denial of consolidation of rape charges; all charged rapes occurred on three consecutive days at different{**62 Misc 3d at 613} times and there was no particularly unusual aspect common to all attacks]; People v Stanley, 81 AD2d 842 [1981] [first three counts of indictment should have been severed from last three counts of indictment charging assault, menacing and harassment because even though the counts were the same or similar in law both incidents involved drunken arguments and a knife and a strong possibility of conviction by reason of cumulative evidence was demonstrated]; People v Vigueras [denial of consolidation of separate DWI dockets]; Matter of William S., 70 Misc 2d 320 [1972] [denial of consolidation of three juvenile delinquent petitions alleging that respondent committed sodomy upon different victims on different dates]; People v Marrow, 60 Misc 3d 1232[A], 2018 NY Slip Op 51287[U] [2018] [denial of consolidation of two dockets each charging misdemeanor possession of heroin]; see generally People v Molineux, 168 NY 264 [1901]).

Based on the foregoing, "[n]otwithstanding instructions to the jury to consider the evidence of each crime separately, there is a substantial likelihood that a jury [will] be swayed by evidence of defendant's general propensity to commit the offenses charged" (People v Vigueras, 2015 NY Slip Op 50889[U], *3).

Moreover, there is no indication that proof from one case would be material and admissible as evidence upon trial of the others. The four alleged assaults are distinct and unrelated. The evidence of one assault would not tend to corroborate the others but rather would tend to unfairly prejudice defendant (see Matter of William S.; see generally People v Fiore, 34 NY2d 81 [1974]; People v McKinney, 24 NY2d 180 [1969]; People v Liller, 20 NY2d 727 [1967]; People v Molineux).

Finally, although the People allege consolidation would support judicial economy since "the civilian witnesses necessary for trial . . . [are] the same" (Zuckerman aff at 4), that is factually incorrect. A plain reading of each of the four accusatory instruments indicates that the complainant in each case is different. Therefore, unlike those instances where the same complainant is involved in multiple cases, here the judicial economy served in the instant matter would be limited.

Thus, based on the foregoing, and bearing in mind "the human tendency to more readily believe a person guilty when it is known or suspected that the accused has engaged in similar crimes" (People v Daniels at 640), consolidation of the dockets would deprive defendant of his fundamental right to a fair trial and unduly prejudice him (see People v Lane; People v Martinez,{**62 Misc 3d at 614} 165 AD3d 1288 [2018]; People v Daniels; People v Vigueras; People v Negron, 105 Misc 2d 492 [1980]).

Accordingly, the People's motion to consolidate docket Nos. 2018BX019330, 2018BX024803, 2018BX024804 and 2018BX024805 is denied.^[FN*]

"conduct which establishes at least one offense, and which is comprised of two or more or a group of acts either (a) so closely related and connected in point of time and circumstance of commission as to constitute a single criminal incident, or (b) so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture."

The People, in support of their motion, cite the case of People v Duggins (3 NY3d 522 [2004]). However, the court finds that Duggins is distinguishable from the instant matter inasmuch as Duggins involved two homicides which took place on the same day within a span of 90 minutes. Moreover, the defendant in Duggins was motivated by a single factor in both homicides inasmuch as his intent was to kill members of a rival gang who were prepared to carry out a contract to kill him. Here, defendant is charged with assault related offenses with respect to four different complainants on three different dates. Thus, this court declines to grant the People's motion under subdivision (2) (a) of CPL 200.20.