Criminal Court of the City of New York, New York County, February 3, 2022

Alvin Bragg, District Attorney, New York City (Shanni Davidowitz of counsel), for plaintiff.

The Legal Aid Society, New York City (Laisa Pertet of counsel), for defendant.

The issue presented is whether consolidation for trial purposes of the above two dockets involving the same or similar offenses pursuant to CPL 200.20 (4) is warranted even though the offenses occurred on three separate dates involving three separate complainants. Because expeditious adjudication in the form of a single trial on both dockets neither leads to any undue prejudice nor compromises defendant's fundamental right to a fair trial, the People's motion to consolidate is granted.

Defendant is charged with three counts of public lewdness (Penal Law § 245.00) and exposure to a person (Penal Law § 245.01). Although each count occurred on a different date, defendant's conduct is identical: he allegedly exposed his erect penis to a complainant and rubbed it in a manner consistent with masturbation.

The first instance, docketed under CR-019509-21 (the first docket), occurred on March 28, 2021, in front of that complainant's place of business. The second incident, docketed under CR-019510-21 (the second docket), happened on July 8, 2021, at a subway station. The last occurrence, included in the second docket, took place on July 27, 2021, at a different subway station. During this incident, however, defendant not only allegedly exposed and rubbed his erect penis in view of the complainant, but he also placed his hand on her buttocks and squeezed [*2]after telling her, "I like that ass." Accordingly, defendant is charged in the second docket with forcible touching{**74 Misc 3d at 748} (Penal Law § 130.52 [1]) and sexual abuse in the third degree (Penal Law § 130.55).

The People argue that the first and second dockets should be consolidated because both "involve the same defendant and are defined by the same or similar statutory provisions" pursuant to CPL 200.20 (2). The People reason that consolidating these dockets saves time and judicial and prosecutorial resources including selecting one jury rather than two. The People also contend that the interests of judicial economy outweigh any prejudice to the defendant, which can be ameliorated by limiting instructions from the trial judge to the jury.

In opposition, defendant contends that, since both dockets involve three separate acts, locations, dates, and witnesses, consolidating the dockets in this instance is not permitted because joinder does not further the interests of judicial economy. Defendant also contends that consolidation would greatly prejudice him because of the sexual nature of the offenses. Defendant claims that courts are cautious to consolidate sex crimes because the inflammatory nature of these charges will likely lead a jury to find guilt based on an accused's perceived propensity rather than the proof adduced at trial. Rather, defendant asserts that good cause exists to sever the dockets pursuant to CPL 200.20 (3) because the last occurrence in the second docket involves a more intrusive sexual offense than the allegations in the other occurrences.

Criminal Procedure Law § 200.20 governs the rules of consolidation for trial purposes of these misdemeanor dockets (see CPL 100.45 [1] ["the provisions of sections 200.20 and 200.40 . . . governing consolidation of indictments for trial purposes, apply to informations . . . and to misdemeanor complaints"]). CPL 200.20 (4) provides that

"[w]hen two or more indictments against the same defendant or defendants charge different offenses of a kind that are joinable in a single indictment{**74 Misc 3d at 749} pursuant to subdivision two, the court may, upon application of either the people or a defendant, order that such indictments be consolidated and treated as a single indictment for trial purposes. If such indictments, in addition to charging offenses which are so joinable charge other offenses which are not so joinable, they may nevertheless be consolidated for the limited purpose of jointly trying the joinable offenses. In such case, such indictments remain in existence with respect to any nonjoinable offenses and may be prosecuted accordingly."

The People specifically move under the above-referenced subdivision (2) (c) of CPL 200.20 permitting joinder of those offenses when such offenses are "defined by the [*3]same or similar statutory provisions and consequently are the same or similar in law" even though such offenses are "based upon different criminal transactions." Consolidation of offenses based on section 200.20 (2) (c) is discretionary (see CPL 200.20 [5]; see also People v Lane, 56 NY2d 1, 8 [1982]).

The seminal case on consolidation is People v Lane (56 NY2d 1 [1982]). In Lane, the Court of Appeals stated that, in considering whether to consolidate offenses, "[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" (see 56 NY2d at 8). Lane also cautioned 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" (see id.).

Despite the sex-related nature of the offenses at bar, the charges here are clearly joinable as legally similar under CPL 200.20 (2) (c) (see People v Vega, 116 AD3d 454, 455 [1st Dept 2014] [holding two "unrelated" counts for rape were properly joined as "similar in law"]). Nor are the counts here so numerous as to tempt the jury to view the evidence cumulatively and to convict defendant based on a perception that he was prone to commit the sort of offenses charged in the complaints (compare People v McCarthy, 51 AD3d 587, 587 [1st Dept 2008] [15 larcenies were properly joined as legally similar]).

Moreover, the alleged conduct to be proved at trial involves acts performed in view of each complainant and defendant allegedly{**74 Misc 3d at 750} spoke to the complainant in the last occurrence. Thus, the trial will consist of eyewitness testimony that will turn on straightforward credibility determinations. Given that the charges in both dockets arise from separate, uncomplex criminal transactions, joinder is favored (see People v Ndeye, 159 AD2d 397, 397 [1st Dept 1990] [affirming consolidation of two indictments that "arose from separate, uncomplex criminal transactions where, on each occasion, the defendant entered an automobile and threatened the driver with a gun or knife while robbing him"]; People v Coppedge, 180 AD2d 613, 613 [1st Dept 1992] [affirming consolidation of separate gun-related crimes and citing to the fact that "(t)he proof with respect to both of the crimes was relatively uncomplicated, well established, and easily amenable to separate consideration by the jury"]).

Additionally, for at least two of the three occurrences, defendant is identified in video surveillance footage. Where, as here, there may be strong evidence identifying defendant as the perpetrator, there is little prejudicial effect. This factor also militates in favor of granting consolidation (see e.g. People v Carlucci, 196 AD3d 418, 419 [1st Dept 2021] [six separate burglaries held legally [*4]similar where "(t)he primary evidence supporting each of the six charges consisted of surveillance video footage from which defendant could be clearly identified"], lv denied 37 NY3d 1026 [2021]; People v Santana, 27 AD3d 308, 309 [1st Dept 2006] [where there was strong identification evidence as to each of the three drug transactions, consolidation was proper]).

Defendant contends that joinder is precluded because, unlike the first docket, the second docket involves "more intrusive" conduct (i.e. defendant's squeezing of the complainant's buttocks), which led to additional charges for forcible touching and sexual abuse. This argument is unavailing in view of controlling case law (see e.g. People v McNeil, 39 AD3d 206, 207 [1st Dept 2007]). In McNeil, the defendant was indicted two times and charged twice for robbery in the first degree and once for robbery in the third degree involving three separate individuals at different times. Importantly, the third-degree robbery included a charge for sexual abuse in the first degree. The McNeil Court held that it was not an improvident exercise of discretion to consolidate because the indictments were defined by the same or similar statutory provisions and the sexual abuse charge was intertwined with one of the robbery charges.

Similarly, defendant's alleged conduct in forcibly touching the complainant is intertwined with his other conduct in exposing{**74 Misc 3d at 751} himself and rubbing his penis immediately prior to contact. Because the conduct on both dockets is similar or intertwined, consolidation is warranted here (see also People v Young, 158 AD2d 398 [1st Dept 1990] [upholding joinder of three indictments based on legal similarity where defendant was charged with rape in the first degree, sodomy in the first degree, assault in the second degree, three counts of robbery in the first degree, and two counts of attempted rape in the first degree]; People v Clark, 240 AD2d 325, 325 [1st Dept 1997] [held as legally similar rape in the first degree, attempted rape in the first degree, sexual abuse in the first degree]; People v Marengo, 276 AD2d 358 [1st Dept 2000] [held as legally similar 12 counts of first-degree robbery arising from eight distinctively similar robberies committed in a three-month period against various small commercial establishments in Manhattan]; People v Craig, 192 AD2d 323, 323 [1st Dept 1993] [perpetrated three subway robberies, and attempted a fourth in the same vicinity on the same line, within a close time span, in three of which he used a meat cleaver]).

To the extent defendant seeks severance pursuant to CPL 200.20 (3), he fails to demonstrate his entitlement to such relief. Defendant neither asserts that he has important testimony to give concerning some counts and a strong need to refrain from testifying as to others (compare People v Screahben, 35 AD3d 246 [1st Dept 2006] [three knifepoint robberies as evidence of modus operandi]; People v Wright, 300 AD2d 191, 192 [1st Dept 2002]). "Nor does the fact that crimes of a sexual nature were involved in each incident provide a sufficient basis for a severance" (see People v Streitferdt, 169 AD2d 171, 176 [1st Dept 1991] [affirming denial of a motion to sever six [*5]sex-related offenses despite the numerosity of counts]). The other cases defendant relies on are not controlling in this Department, are inapposite, or both (see People v Daniels, 216 AD2d 639, 640 [3d Dept 1995]; People v Pinkas, 156 AD2d 485, 486-487 [2d Dept 1989] [prosecutor's comingling of events in the presentation of her case-in-chief and in summation caused undue prejudice in consolidated trial]).

Accordingly, it is ordered that the People's motion to consolidate dockets CR-019509-21/NY and CR-019510-21/NY for trial purposes only is granted.