The Wyoming County Grand Jury returned an indictment charging the defendant, Kimberly Garland, (hereinafter "Defendant") under Indictment number 9072 with two counts of Aggravated Family Offense (hereinafter, "AFO"), class "E" felonies, in violation of Penal Law §240.75(1) and one count of Criminal Contempt in the First Degree (hereinafter, "CC 1st"), a class "E" felony, in violation of PL § 215.51(c). The Defendant was arraigned on this indictment on October 26, 2023.

Thereafter, the Wyoming County Grand Jury returned a second indictment charging the Defendant, under Indictment number 9172, with a sole count of Aggravated Family Offense, a class "E" felony, in violation of Penal Law §240.75(1). The Defendant was arraigned on this indictment on June 20, 2024.

On June 20, 2024, the People made an oral application to consolidate indictment numbers 9072 and 9172. Thereafter, on August 16, 2024, Defendant filed her notice of omnibus motion together with an Attorney Affirmation of Valerie G. Gardner, Esq. sworn to on August 16, 2024 that, in part, opposed the consolidation of these indictments. The People filed an Answering Affirmation by the Wyoming County First Assistant District Attorney Chelsie A. Hamilton, affirmed August 27, 2024.

The cases pending against the Defendant encompass several allegations of various types of violations of separate issued CPL Orders of Protections by the Genesee and Wyoming County Courts against the same complainant, R.C.. The People seek to consolidate these indictments for [*2]purposes of trial pursuant to CPL §§200.20(2)(b) and (c). In support of their motion, the People contend the multiple charges of AFO and CC 1st are the same or similar in law under Penal Law Article 215 and nature pursuant to CPL § 200.20(2)(b). The People further assert that the cases are subject to consolidation because they involve the same complainant, and proof in the first case would be material and admissible as evidence in the case-in-chief of the second case and vice versa.

The Defendant opposes consolidation because the proof of one case is not admissible or material in the case-in-chief of the other case (and vice versa), a lack of substantial proof in one of the cases, the impact of the Defendant's ability to testify in one of the cases, and a confusion by the jury since separate courts issued stay away orders of protection.

After a review of the parties' submissions and consideration of the points raised at oral argument, the motion is decided as follows:

CPL § 200.20(2)(b) provides that two offenses are joinable when "even though based on 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 trial of the second, or proof of the second would be material and admissible as evidence in chief upon trial of the first. CPL § 200.20(2)(c) states "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."

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. Lane, 56 NY2d; People v. Bongarzone, 69 NY 892; People v. Gonzalez, 229 AD2d 398; People v. Krasnici, 2001 Slip Op 50125(U)).

Here, "even though based on different criminal transactions, such offenses, or the criminal transactions underlying them, are of such nature that proof of the first offense would be material and admissible as evidence in chief upon trial of the second" (CPL § 200.20(2)(b)). Specifically, "proof of the charges on the first indictment would be admissible in the second to establish the underlying basis of the order of protection" (People v. Cherry, 4 Misc 3d 40 citing People v. Till, 87 NY2d 835; (see also People v. Dobbins, 123 AD3d 1140; People v. Salnave, 41 AD3d 872; People v. McNeil, 39 AD3d 209; People v. Kelly, 33 AD3d 461). Additionally, the charges in the first case with respect to defendant's alleged violations of appearing at the complainant's home, calling the complainant, and subscribing to her Only Fans account is relevant to establish Defendant's motive, intent, and/or lack of accident to violate the order of protection in the second case by allegedly calling the complainant on her birthday, which is Valentine's Day. (see People v. Molineux, 168 NY 264; People v. Bongarzone, supra; People v. Torra, 309 AD2d 1074). The indictments contain multiple charges of AFO and CC 1st, which are the same or similar in law under Penal Law Article 215 and nature pursuant to CPL § 200.20(2)(b). Moreover, joinder is warranted inasmuch as each case involves the same complainant whose testimony will likely overlap (see People v. Cahill, 2 NY3d 14; People v. Harvey, 5 Misc 3d 751). Accordingly, the Court finds that the People have met their burden for consolidation.

The defense opposes consolidation of these indictments for trial on a wide variety of grounds, the chief being that the Defendant wishes to testify as to a criminal transaction alleged [*3]in one indictment, but desires to remain silent as to a criminal transaction alleged in the other indictment. The Court of Appeals case, People v. Lane, 56 NY2d 1 (1982) is instructive. In that case, the Court decided that a defendant must make "a convincing showing that [s]he has both important testimony to give concerning one count and strong need to refrain from testifying on the other. In making such a showing, it is essential that the defendant present enough information—regarding the nature of the testimony he wishes to give on one count and [her] reasons for not wishing to testify on the other—to satisfy the court that the claim of prejudice is genuine and to enable it intelligently to weigh the considerations of 'economy and expedition in judicial administration' against the defendant's interest in having a free choice with respect to testifying". Lane, NY2d at 8. The Defendant has failed to provide any information whatsoever so that the Court may weigh these considerations.

Moreover, there is no substantial likelihood that the jury would be unable to consider separately the proof as it relates to each offense (People v. Jackson, 273 AD2d 253 citing CPL § 200.20(3)(a); see also People v. Young, 167 AD2d 441; People v. Martin, 141 AD2d 854). In this regard, the jury will be instructed by the trial court to consider each charge on its own merit (see People v. McQueen, 266 AD2d 240; People v. Rose, 187 AD2d 617).

Thus, based on the foregoing, consolidation of the indictments would not deprive defendant of a fundamental right or unduly prejudice her (see People v. Lane, supra; People v. Simpkins, supra; People v. Santiago, 2 AD3d 263; People v. Harvey, supra). Moreover, the Court finds that the public interest and judicial economy would best be served by the consolidation of these cases.

Accordingly, the prosecution's motion to consolidate Indictment Nos. 9072 and 9172 for purposes of trial is hereby GRANTED.

This constitutes the Decision and Order of this Court. Proceed accordingly.