Defendants Herrera Garcia and Mendez, husband and wife, are accused of simultaneously running a day care and a narcotics operation out of an apartment in Bronx County. Defendants were packaging fentanyl, heroin and other drugs. Fentanyl poisoning killed twenty-two month old N.D. and seriously injured two year old A.G. Two other young children, ages eight months and two years old, were also injured from the exposure to the drugs.

Based on this conduct, defendants were indicted by both the federal and state governments. Each defendant separately pleaded guilty in federal court to charges of conspiracy to distribute narcotics and the distribution of narcotics that resulted in death and serious bodily injury. Each defendant was sentenced in federal court to a prison term of 45 years. The state charges for Murder in the Second Degree, Manslaughter in the Second Degree, Assault in the First Degree, Assault in the Second Degree and Endangering the Welfare of a Child are pending.

After the defendants pleaded guilty and were sentenced in federal court, the People conceded that the New York State double jeopardy statute bars prosecution for the state charges alleging narcotics possession. The state narcotics charges were subsequently dismissed on the People's motion.

Defendants now move for dismissal of the remaining state charges, arguing that double jeopardy also bars their prosecution for the murder, assault, and related charges. Should the court deny the motion, defendants move for severance. With the exception of counts 7, 8, and 12, which are felony assault counts related to N.D. and A.G., the People oppose the dismissal motion and oppose severing defendants for trial. For the following reasons, the motions to dismiss counts 7, 8, and 12 are granted with the People's consent but are denied as to the remaining counts; the motions to sever are likewise denied.

Although successive prosecutions for offenses based on the same act or criminal transaction are generally prohibited (CPL § 40.20[2]), the New York double jeopardy statute allows such prosecutions where "each of the offenses as defined contains an element which is not an element of the other, and the statutory provisions defining such offenses are designed to prevent very different kinds of harm or evil." (CPL § 40.20[2][b]). It is uncontested that the federal and state charges are based on the same criminal transaction. Although defendants argue that the state charges have the same elements and address the same harms as the federal charges, the court finds that the federal narcotics statutes to which the defendants pleaded guilty and the state charges of depraved indifference murder, manslaughter, assault, and child endangerment contain different elements and are designed to address different harms. As such, the motions to dismiss based on double jeopardy are denied.^[FN1]

Comparison of the Elements of the Federal and State Charges

Defendants pleaded guilty to federal crimes containing specific elements of possession of narcotics with the intent to distribute, with an additional element of death or serious bodily injury. Those additional elements, which enhanced the minimum penalties defendants faced, are the only elements that are the same in the New York statutes which require a depraved indifference and/or a reckless mens rea and have no element of possession of narcotics with an intent to distribute.

The Federal Charges

Defendants each pleaded guilty to one count of Conspiracy to Distribute Narcotics Resulting in Death and Serious Bodily Injury (21 USC §§ 846; 841[a][1], [b][1][a]); one count of Possession with Intent to Distribute Narcotics Resulting in Death (21 USC § 841[a][1], [b][1][a]), and one count of Possession with Intent to Distribute Narcotics Resulting in Serious Bodily Injury. (21 USC § 841[a][1], [b][1][a]).

The elements of the conspiracy count require the government to prove that defendants attempted or conspired to commit any offense defined in the same subchapter of the statute. (21 USC § 846). As charged in the federal case, the underlying offenses are the same as those charged in the second and third counts — the distribution of narcotics resulting in death and serious bodily injury. (21 USC § 841[a][1], [b][1][a]). The elements of the second and third counts require the government to prove that defendants knowingly or intentionally possessed a controlled substance with the intent to distribute it, that the controlled substance was a particular weight, and that the use of the controlled substance resulted in death or serious bodily injury. (21 USC § 841[a][1], [b][1][a]). Unlike these federal charges, none of the pending state charges contain any elements concerning conspiracy or controlled substances, let alone the weight of a controlled substance, or the intentional possession of, with intent to distribute, a controlled substance.

The State Charges

As previously noted, the pending state charges contain elements that are not present in the federal charges, particularly with regard to the requisite mental state. For instance, count 1 in the indictment, Murder in the Second Degree (PL § 125.25[2]), requires the People to prove that defendants recklessly engaged in conduct, under circumstances evincing a depraved indifference to human life, which created a grave risk of death to another person and caused death.

Counts 5 and 6, each charging Assault in the First Degree (PL § 120.10[3]), also require the People to prove that defendants recklessly engaged in conduct, under circumstances evincing a depraved indifference to human life, which created a grave risk of death to another person, but caused serious physical injury.

Count 9, Manslaughter in the Second Degree (PL § 120.15[1]), requires the People to prove that defendants recklessly caused the death of another person.

Counts 10 and 11, each charging Assault in the Second Degree (PL § 120.05[4]), require the People to prove that defendants recklessly caused serious physical injury by means of a dangerous instrument.

Counts 28 and 29 charge Endangering the Welfare of a Child (PL § 260.10[1]) and require the People to prove that defendants knowingly acted in a manner likely to be injurious to the physical, mental, or moral welfare of a child less than seventeen years old.

Despite the fact that the federal and state charges contain elements that are mutually exclusive, defendants argue that the elements of the state charges are identical to those of the federal charges because the possession of narcotics, which caused death and serious physical injury, are the very basis upon which they were convicted in federal court. This position is rejected in that it focuses on the underlying transaction while ignoring the statutory language of the double jeopardy exception that applies to this case. The fact that there is some overlap between the federal and state prosecutions is of no moment because CPL § 40.20 requires the court to compare the actual elements of the crimes, not the underlying facts.

People v Bryant (92 NY2d 216 [1998]) is illustrative of this point. In Bryant, the Court of Appeals held that a state prosecution was not barred by a prior federal conviction involving the same criminal transaction where the requirements of the double jeopardy exception set forth in CPL § 40.20(2)(b) were met. The defendants in Bryant were convicted in federal court of multiple charges including bank robbery, assaulting and placing in jeopardy the lives of others using a dangerous weapon during the course of that robbery, and the possession of firearms during the commission of a crime of violence. The defendants were subsequently charged in state court with crimes related to the same bank robbery, including the attempted murder of a police officer while engaged in his official duties and the knowing possession of defaced firearms. The trial court granted the defendants' motions to dismiss some of the state charges on double jeopardy grounds but denied their motions to dismiss the aforementioned charges. Although the federal indictment alleged that the defendants fired numerous shots at police officers as they fled from the robbery, and the state crimes occurred during the commission of the same bank robbery, the Court held that the subsequent state prosecution was permissible because the elements of the federal charges and remaining state crimes, as well as the kinds of harm sought to be regulated by the federal and state crimes, were markedly different. (Bryant, 92 NY2d at 228-30).

Similarly, in People v Biear (119 AD3d 599 [2d Dept 2014], appeal denied, 24 NY3d 959), the Second Department held that CPL § 40.20(2)(b) permitted successive prosecutions for federal mail fraud and falsely reporting an incident under state law based on the same criminal transaction. The Court held that each offense had an element that the other did not, and that the statutes were designed to prevent different harms.

And in People v Austin (14 Misc 3d 295 [Sup Ct, NY County 2006]), the court held that the CPL § 40.20(2)(b) exception applied where the defendant pleaded guilty to federal weapons possession charges and was subsequently charged in state court for attempted robbery using the same weapon, and possession of that same weapon, during the same criminal transaction. The Austin Court held that the federal and state charges each contained elements that were not present in the other, and that the federal and state statutes addressed substantially different harms or evils. That decision was affirmed on appeal. (People v Austin, 63 AD3d 490 [1st Dept 2009], appeal denied, 13 NY3d 741).

Because the federal charges to which defendants pleaded guilty contain elements that are not in the state charges, and vice versa, the first prong of the statutory double jeopardy exception is met in this case.

Comparison of the Harm or Evil the Charges are Designed to Prevent

The federal narcotics statutes and the state homicide, assault, and child endangerment statutes are clearly designed to address different harms. Defendants' arguments remain focused on the specific facts of the case as opposed to the purpose of the statutes themselves. Noting that she was convicted federally for the death and serious physical injury of the children in her care as a result of the possession of a controlled substance, Mendez argues that this is "exactly the type of evil" that the state charges are designed to protect against. Herrera Garcia similarly argues that the CPL § 40.20(2)(b) exception does not apply because the same controlled substance was the instrumentality that caused death and was the basis for both prosecutions. For the following reasons, these positions are rejected.

This court's double jeopardy analysis is not constrained by the People's theory of the case or the defendants' singularly narrow focus on the facts. Criminal Procedure Law § 40.20(2)(b) requires this court to look "not to the evil toward which the particular prior prosecution was directed, but rather to the broader evil to which the penal statute in question was addressed." (Matter of Kaplan v Ritter, 71 NY2d 222, 230 [1987]). In doing so, this court finds that the state charges address substantially different harms or evils than those addressed by the federal crimes to which defendants pleaded guilty.

The federal charges, codified under Title 21, Chapter 13 of the United States Code, entitled "Drug Abuse Prevention and Control," are primarily concerned with the proliferation of drugs, illegal drug trafficking, and drug abuse. (21 USC § 801). In contrast, the state charges in this case do not refer to controlled substances because they were not enacted to address the illegal possession and distribution of drugs, or their effects on drug use and abuse. Illustrative of this point is the fact that the drafters of the depraved indifference murder statute described the crime as "extremely dangerous and fatal conduct performed without specific homicidal intent but with a depraved kind of wantonness: [such as] . . . shooting into a crowd, placing a time bomb in a public place, or opening the door of the lions' cage in the zoo." (People v Feingold, 7 NY3d 288, 293 [2006] [quoting People v Payne, 3 NY3d 266, 272 [2004]]). As opposed to the specific and intentional conduct that is targeted by the federal drug crimes, the state homicide and assault statutes were designed to address a broad range of depraved and/or reckless conduct that results in death or serious physical injury. Similarly, the child endangering statute was designed to address a broad range of conduct that is likely to be injurious to children.

The People concede that counts 7 and 8, charging Assault in the First Degree (PL § 120.10[4]), and count 12, charging Assault in the Second Degree (PL § 120.05[6]), should be dismissed because they require injury in furtherance of the commission of a felony which, in this case, would be the various drug charges that have already been dismissed on double jeopardy grounds. As such, the People concede that counts 7, 8, and 12 address the same harm or evil that is addressed by the felony drug charges.

Based on the foregoing, the court finds that the federal charges contain elements that the state charges do not, and vice versa, and that the federal and state charges are designed to address different harms or evils. Accordingly, the sequential state prosecution is lawful and defendants' motions to dismiss all of the remaining charges in the indictment are denied. Counts 7, 8, and 12 are dismissed with the People's consent.

Good cause for a severance includes, but is not limited to, "a finding that a defendant . . . will be unduly prejudiced by a joint trial." (CPL § 200.40[1]). The party claiming prejudice is required to show that a joint trial will substantially impair his or her defense. (People v Mahboubian, 74 NY2d 174, 184 [1989] [citation omitted]). Only the most cogent reasons will warrant a severance "where proof against the defendants is supplied by the same evidence. . . ." (Mahboubian, 74 NY2d at 183). Joint trials are preferred where the defendants are charged with acting in concert, and severance is not required solely because of hostility between defendants or inconsistencies in their defenses. (People v Everson, 229 AD3d 1349, 1350 [4th Dept 2024] [citation omitted]). Severance will be "compelled where the core of each defense is in irreconcilable conflict with the other and where there is a significant danger, as both defenses are [*2]portrayed to the trial court, that the conflict alone would lead the jury to infer defendant's guilt." (Mahboubian, 74 NY2d at 184). For the following reasons, both defendants have failed to meet their burden of demonstrating that a joint trial will substantially impair their defenses.

In support of his motion, Herrera Garcia argues that a severance is warranted based on Mendez's statements during her plea allocution in federal court. Herrera Garcia also argues that Mendez's statements cannot be sanitized in a way that would prevent the jury from knowing that he was the co-conspirator that Mendez referred to in her statements. Although the use of a co-defendant's confession can be unduly prejudicial to a defendant (Bruton v United States (391 US 123 [1968]), the court finds that each defendant's plea allocution can easily be redacted in a way that does not implicate the other, as reflected in the People's opposition papers. (Aff in Opp to Def Mot to Dismiss Pursuant to CPL Art 40 or Alternatively, for Severance, Exh A and C).

Defendants' claims that severance is warranted due to irreconcilable defenses are also rejected. Although Herrera Garcia admits that he and Mendez ran a drug operation in the day care, he notes that there is evidence that the children ingested fentanyl, and he anticipates that he will testify about "the exacting manner" in which he packaged and stored the drugs. In opposition, the People argue that the primary case against defendants is about fentanyl and other narcotics being processed, packaged, and stored in a day care, in and of itself. Given that both defendants are charged with acting in concert in this case, Herrera Garcia has failed to demonstrate any irreconcilable defense, let alone a danger that some purported conflict in defenses alone would lead the jury to infer his guilt (Mahboubian, 74 NY2d at 184) so as to establish good cause for a severance.

Finally, although Mendez has joined in Herrera Garcia's motion to sever, Mendez has failed to set forth any facts for this court to consider that would support a severance pursuant to Bruton or due to irreconcilable defenses.

Based on the foregoing, defendants' motions to sever are denied.

The foregoing constitutes the decision and order of the court.