Crimes - Consolidation and Severance - Joinder of Counts in Single Trial - Timeliness of Motion

Eric Gonzalez, District Attorney, for the People.

Brooklyn Defender Services for defendant.

{**88 Misc 3d at 260}The issue presented is whether, pursuant to CPL 200.20, the People's motion to consolidate for trial purposes made prior to their filing a certificate of compliance (COC) should be granted where there are two criminal actions against one defendant which involve identical offenses which occurred on two separate days against the same complainant and an additional complainant on the later date. Since an informed decision by defense counsel as to whether consolidation would lead to undue prejudice or compromise a defendant's rights turns on evidentiary issues, the motion must be denied with leave to renew following the People's COC.

On April 13, 2025, defendant Andrew Vesprey (defendant or Vesprey) was arraigned on two cases, docket numbers CR-017928-25KN and CR-017927-25KN. Both matters were adjourned to June 11, 2025. The court action sheets indicate that the final date for the People to file their COC and statement of readiness (SOR) was July 11, 2025. To date, the People have not yet filed their COC and SOR. On July 1, 2025, the People moved to consolidate the two cases.

In docket number CR-017928-25KN, defendant was accused of choking his 16-year-old daughter (CW1) on March 14, 2025, causing her to have difficulty breathing and substantial pain, to fear further injury, and to become alarmed and annoyed. Defendant was charged with assault in the third degree (Penal Law § 120.00 [1]), criminal {**88 Misc 3d at 261}obstruction of breathing or blood circulation (Penal Law § 121.11 [a]), endangering the welfare of a child (Penal Law § 260.10 [1]), attempted assault in the third degree (Penal Law §§ 110.00, 120.00 [1]), and harassment in the second degree (Penal Law § 240.26 [1]). The place of this alleged occurrence was on a public sidewalk in the vicinity of Eastern Parkway in the County of Kings.

In docket number CR-017927-25KN, defendant was accused of striking his other daughter (CW2) (CW1's twin sister) multiple times with a closed fist, causing bruising to her face, and placing his hands around her neck, applying pressure and causing her to have difficulty breathing on March 18, 2025. Defendant is further accused of striking CW1 multiple times with a closed fist on March 18, and grabbing and twisting her head, while stating in sum and substance "I will snap your neck." It is alleged that these actions caused CW2 to suffer substantial pain, to fear further physical injury and to become alarmed and annoyed. Defendant [*2]was charged with two counts of assault in the third degree (Penal Law § 120.00 [1]), criminal obstruction of breathing or blood circulation (Penal Law § 121.11 [a]), two counts of endangering the welfare of a child (Penal Law § 260.10 [1]), two counts of attempted assault in the third degree (Penal Law §§ 110.00, 120.00 [1]), and two counts of harassment in the second degree (Penal Law § 240.26 [1]). The place of this alleged occurrence was at defendant's residence in the County of Kings.

On July 1, 2025, the People moved to consolidate the two dockets pursuant to Criminal Procedure Law §§ 100.45 (1), 200.20 and 200.40, and defendant has not opposed this motion. Section 100.45 (1) provides that CPL 200.20 and 200.40, which govern consolidation of indictments for trial purposes, also "apply to informations, to prosecutor's informations and to misdemeanor complaints." CPL 200.20 (2) provides that two offenses are "joinable" for trial purposes when (i) they are based on the same act or criminal transaction (CPL 200.20 [2] [a]); (ii) they are based on different criminal transactions but proof of the first offense would be material and admissible as evidence in the trial of the second offense (CPL 200.20 [2] [b]); or (iii) both "offenses are defined by the same or similar statutory provisions and consequently are the same or similar in law" (CPL 200.20 [2] [c]). (See People v Jenkins, 50 NY2d 981, 982-983 [1980] [it was permissible to join the two robberies in a single indictment because the offenses were "the same or similar in law"]; see also People v Stegeman, 139 AD3d 1092, 1093 [2d Dept 2016].) When two offenses are joinable under CPL 200.20 (2), the court may, upon application of either the People or a defendant, order that such criminal actions be consolidated "for trial purposes" (CPL 200.20 [4]). A court's determination as to whether to grant an application for consolidation is "discretionary" (CPL 200.20 [5]). The court, "in its discretion," and in the "interest of justice" and for "good cause shown," may order that such offenses be tried separately (CPL 200.20 [3]). Good cause shall include a situation where there is "[s]ubstantially more proof on one or more such joinable offenses than on others and there is a substantial likelihood that the jury would be unable to consider separately the proof as it relates to each offense" (CPL 200.20 [3] [a]; People v Manning, 239 AD3d 887 [2d Dept 2025]).

Contrary to the People's contention, proof of the offenses charged in docket number CR-017928-25KN is not necessarily material and admissible as evidence-in-chief at the trial of docket number CR-017927-25KN pursuant to CPL 200.20 (2){**88 Misc 3d at 262} (b) because proof of the events that allegedly occurred on March 18 may not be necessary to "complete the narrative" and "provide necessary background information" in order to prove the events which allegedly occurred on March 14. (Manning at 888.) Furthermore, the Molineux rule "states that evidence of a defendant's uncharged crimes or prior misconduct is not admissible if it cannot logically be connected to some specific material issue in the case, and tends only to demonstrate the defendant's propensity to commit the crime charged." (People v Hu Sin, 44 NY3d 455, 459 [2025], citing People v Molineux, 168 NY 264 [1901].) It is only where evidence of one crime is sufficiently probative on an issue in the second to outweigh the prejudice involved that both crimes can be tried together. (People v Davis, 225 AD3d 62, 69-70 [1st Dept 2024].) At this juncture, not having been presented with a COC and evidence discoverable pursuant to CPL 245.20 (1), this court cannot determine the Molineux issue, and the People have prematurely invoked CPL 200.20 (2) (b) as a way to justify consolidation.

In this case, CPL 200.20 (2) (c) governs since the alleged criminal acts on March 14 and March 18 involve identical offenses, and the issue is whether there is good cause for the offenses [*3]to be tried separately. This court cannot, at this juncture, grant the People's motion to consolidate (even though there has been no opposition) because there is no way for the court to discern whether there is "good cause" to order separate trials, i.e., whether there is substantially more proof of one offense over the other, or whether the jury would be unable to separately consider the proof for each offense, since the People have not yet filed their COC and produced discovery. In particular, the discovery materials may reveal whether there is sufficient evidence to convict defendant on either criminal action or whether there is a risk that the jury will conclude that defendant has a propensity for the offenses he is charged with based on two occurrences. In addition, the People's moving papers raise unanswered evidentiary issues. The People state that on March 14, CW1 made a walk-in report to PO Brian J. Margas. This report is automatically discoverable pursuant to CPL 245.20 (1) (e), which provides that "[a]ll statements . . . , written or recorded or summarized in any writing or recording, made by persons who have evidence or information relevant to any offense charged or to any potential defense thereto, including all police reports, notes of police and other investigators,{**88 Misc 3d at 263} [and] law enforcement agency reports" are automatically discoverable. The People further assert in their moving papers that CW1's and CW2's aunt reported the March 18 incident on March 19, 2025, to PO Frederick E. Alleyne, yet she is not named as an informant in the complaint. This report is also automatically discoverable under CPL 245.20 (1) (e).

CPL 255.20 (1) provides that "all pre-trial motions shall be served or filed within forty-five days after arraignment and before commencement of trial, or within such additional time as the court may fix upon application of the defendant made prior to entry of judgment." Forty five days after arraignment was May 28, 2025, and the People's motion was untimely. Pursuant to CPL 255.20 (3), any pretrial motion made after the 45 day period may be summarily denied, but the court, "in the interest of justice, and for good cause shown, may, in its discretion, at any time before sentence, entertain and dispose of the motion on the merits." Here, the interest of justice requires that the court decide the motion to consolidate to avoid undue prejudice to defendant. (People v Pierce, 14 NY3d 564, 573 [2010].)

For the aforementioned reasons, the People's motion to consolidate dockets CR-017928-25KN and CR-017927-25KN is denied, with leave to renew following their filing of a COC and SOR. This will enable defense counsel to fully evaluate whether there are grounds for opposing a motion to consolidate. CPL 30.30 (4) (a) provides: "In computing the time within which the people must be ready for trial . . . the following periods must be excluded: (a) a reasonable period of delay resulting from other proceedings concerning the defendant, including but not limited to . . . pre-trial motions." The court had originally directed the People to file their COC by July 11, 2025. However, the period during which the consolidation motion was under consideration by this court (July 1-18) is excludable in the speedy trial calculation pursuant to CPL 30.30 (4) (a). (People v Stewart, 57 AD3d 1312, 1314 [3d Dept 2008]; People v Kelly, 33 AD3d 461, 462 [1st Dept 2006]; People v Sotos, 83 Misc 3d 1288[A], 2024 NY Slip Op 51244[U], *3 [Sup Ct, Kings County 2024].) Therefore, this court is granting the People an additional 17 days to file their COC and SOR. Since July 28 falls on a Sunday, the final date for the People to file their COC and SOR is July 29, 2025.