Opinion
2017BX000095
11-27-2017
The People of the State of New York, Plaintiff, v. Anthony Skerritt, AESHA PARKER AMADOU DIALLO DAVE EVANS, Defendants.
Appearances of Counsel: Paul London Assigned Counsel for Anthony Skerritt 917-681-2311 Karume James The Bronx Defenders for Aesha Parker 347-842-1320 Corey Sokoler Assigned Counsel for Amadou Diallo 646-261-9726 Katherine Burton The Legal Aid Society for Dave Evans 718-579-3084 Jennifer Seeba Assistant District AttorneyOffice of the Bronx District Attorney 718-838-6152
Appearances of Counsel: Paul London Assigned Counsel for Anthony Skerritt 917-681-2311 Karume James The Bronx Defenders for Aesha Parker 347-842-1320 Corey Sokoler Assigned Counsel for Amadou Diallo 646-261-9726 Katherine Burton The Legal Aid Society for Dave Evans 718-579-3084 Jennifer Seeba Assistant District AttorneyOffice of the Bronx District Attorney 718-838-6152 David J. Kirschner, J.
On January 1, 2017, at approximately 5:30 a.m., approximately 500 people exited a restaurant located at 3716 White Plains Road in Bronx County. A crowd gathered and remained outside the establishment, precipitating approximately 200 police officers to respond. When the crowd was directed to disperse, many people refused while others acted belligerently by screaming and throwing objects at the officers. Several individuals, including the above referenced defendants, were arrested.
In addition to the above-captioned defendants, Tyerel Aponte was arrested and charged under Docket 2017BX000094. On August 14, 2017, however, all charges against him were dismissed.
By motion filed June 13, 2017, the People move to join the above-captioned dockets pursuant to Criminal Procedure Law sections 200.40 and 100.45 (1). Defendants Skerritt and Parker oppose the People's motion; defendant Evans does not. Defendant Diallo filed no response. Commensurate with their motion, the People also filed a prosecutor's information charging the defendants as specified below. After review of the motion papers and respective arguments therein, the accusatory instruments, other papers on file with the court, and prior court proceedings, the People's motion is denied in its entirety.
I. Background and Procedural History
Defendant Anthony Skerritt was arrested and charged with resisting arrest (PL § 205.30, a class "A" misdemeanor); obstructing governmental administration in the second degree (PL § 195.05, a class "A" misdemeanor); riot in the second degree (PL § 240.05, a class "A" misdemeanor); and four counts of disorderly conduct (PL § 240.20 [1], [5], [6], [7], all violations). These charges stem from the above-mentioned events alleged to have occurred on January 1, 2017. Police Officer Christopher Hernandez (PO Hernandez) directed defendant Skerritt to leave the area in front of the restaurant. Defendant allegedly refused, remained standing at the location and blocked pedestrian traffic. When PO Hernandez attempted to arrest him, he flailed his arms, twisted his body, and refused to be handcuffed.
Defendant Aesha Parker was arrested and charged with resisting arrest (PL § 205.30, a class "A" misdemeanor); obstructing governmental administration in the second degree (PL § 195.05, a class "A" misdemeanor); and six counts of disorderly conduct (PL § 240.20 [1], [2], [3], [5], [6], [7], all violations). These charges stem from the above-mentioned events alleged to have occurred on January 1, 2017. Police Officer Jorge Santiago (PO Santiago) asked her to leave the area; she purportedly refused, told PO Santiago that the police could not tell her what to do, and said "fuck the police."She allegedly remained at the restaurant and blocked pedestrian traffic. When PO Santiago twice more instructed her to leave the area, she persistently refused to do so. Then, upon PO Santiago's attempt to arrest her, she flailed her arms, and refused to be handcuffed.
The People subsequently moved to include the charge of rioting in the second degree (PL § 240.05, a misdemeanor) against Parker.
Defendant Amadou Diallo was arrested and charged with resisting arrest (PL § 205.30, a class "A" misdemeanor); obstructing governmental administration in the second degree (PL § 195.05, a class "A" misdemeanor); riot in the second degree (PL § 240.05, a class "A" misdemeanor); and six counts of disorderly conduct (PL § 240.20 [1], [2], [3], [5], [6], [7], all violations). These charges stem from the above-mentioned events alleged to have occurred on January 1, 2017. Police Officer Andrew Distelhurst (PO Distelhurst) instructed him to disperse. Defendant allegedly responded that the police could not tell him what to do, screamed "fuck the cops," and remained standing in place disrupting pedestrian traffic. When PO Distelhurst attempted to arrest him, defendant flailed his arms and legs, refused to be handcuffed, and again screamed "fuck the cops."
Defendant Dave Evans was arrested and charged with two counts of attempted assault (PL § 110.00/120.05 [2], [3], class "D" felonies); reckless endangerment (PL § 120.20, a class "A" misdemeanor); menacing in the second degree (PL § 120.14 [1], a class "A" misdemeanor); criminal possession of a weapon in the fourth degree (PL § 265.01 [2], a class "A" misdemeanor); resisting arrest (PL § 205.30, a class "A" misdemeanor); obstructing governmental administration in the second degree (PL § 195.05, a class "A" misdemeanor); riot in the second degree (PL § 240.05, a class "A" misdemeanor); attempted assault in the third degree (PL § 110.00/120.00 [1], a class "B" misdemeanor); harassment in the second degree (PL § 240.26 [1], a violation); and six counts of disorderly conduct (PL § 240.20 [1], [2], [3], [5], [6], [7], all violations).
On January 3, 2017, the People orally amended the charge of attempted assault in the third degree from PL § 110.00/120.05 (3) to PL § 110.00/120.05 (1). Then, on April 4, 2017, the People moved to dismiss both counts of attempted assault in the second degree (PL § 110.00/120.05 [1], and [2]). --------
These charges stem from the above-mentioned events alleged to have occurred on January 1, 2017. When PO Santiago directed him to leave, defendant allegedly refused to do so, continued blocking pedestrian traffic, and screamed "fuck you." He then allegedly raised a glass bottle over his head and threw it at the several officers, which struck a police patrol vehicle before shattering. When PO Santiago attempted to arrest him, he flailed his arms and refused to be handcuffed.
II. Discussion
A. Joinder
The statutory authority governing joinder of defendants charged with different offenses in a prosecutor's information is governed by the same authority as an indictment (CPL §§ 200.20, 200.40, 100.35, and 100.45 [1]; People v Marcial, 25 Misc 3d 1220[A] [Crim Ct, Queens County 2009]; People v Tejada, 180 Misc 2d 228 [Crim Ct, New York County 1997]). Specifically, defendants may be joined where the charged offenses are a part of the same criminal transaction (CPL 200.40 [1] [c]; People v Mahboubian, 74 NY2d 174, 183 [1989]; People v Summers, 191 Misc 2d 386, 389 [Sup Ct, Bronx County 2002]; see also People v Chestnut, 19 NY3d 606, 610 [2012]). Criminal Procedure Law section 40.10 (2) defines the "same criminal transaction" principle. Subsection two provides, in pertinent part, that a "criminal transaction" is conduct which consists of two or more acts that are:
(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." (CPL § 40.10 [2]).
The "same criminal transaction" principle has been applied in joinder of offenses committed by multiple defendants, and joinder of offenses committed by the same defendant (Summers, 191 Misc 2d 388). General principles that define the term "same criminal transaction" in joinder of multiple offenses against a single defendant are applied to joinder of offenses committed by various defendants (id.).
To determine whether two or more acts are part of the same criminal transaction, the court must examine the nature of the offenses, and underlying facts of the offenses — such as the victim, time of occurrence, place of occurrence, and date occurrence (People v Griffin, 137 AD2d 558, 559 [2d Dept 1988]; see also People v Spann, 56 NY2d 469, 474 [1982]). The mere commission of offenses at the same time and place, however, does not constitute the same criminal transaction. For conduct to be part of the same criminal transaction, it need not occur simultaneously, nor must the conduct of each defendant be precisely the same (People v Biltsted, 151 Misc 2d 620, 627 [Crim Ct, New York County 1991], citing People v Sharpton, 141 Misc 2d 322 [Crim Ct, Kings County 1988]). Rather, the conduct must be substantively similar in the nature of the offenses and the manner of the offenses commission (Summers, 191 Misc 2d 388. Where the nature of the crimes and the underlying facts are similar, the offenses are deemed a part of the same criminal transaction (People v Duggins, 3 NY3d 534 [2004]).
In support of their motion for joinder, the People rely on People v Biltsted. In Bilsted, eight defendants were charged in connection with a riot in a public park, and the criminal actions of the various defendants occurred over the course of a four-hour period (Biltsted, 151 Misc 2d 620). In applying the test set forth in People v Griffin (id at 625), the court reasoned that both the nature of the crime and underlying facts (i.e., victim, time, place and date) must be examined (id citing People v Griffin, 137 AD2d 558 [2d Dept 1988]).
There, the court found that the offenses were of the same nature because all eight defendants engaged in a "continuous pattern of criminal conduct within a limited geographic area" (id at 627). The court further noted that all of the defendants' conduct was "prompted by a common motivation of protest or resistance" (id). Further, the court found that the underlying facts of the offenses ("victim, time, place and date") were substantially similar because the offenses occurred in the same four-hour time period, and at the same place (id at 628). The court further observed that the complainants of the each offense could be described as city officials and public property. When described generically, the intended victims of the various offenses were the same or substantially similar (id). Thus, the underlying facts of each offense were the same (id). Because all of the offenses were of the same nature, and the underlying facts of each offense were the same, the court properly found that all of the offenses were part of the same criminal transaction (id at 629).
Here, joinder of all four defendants is authorized by CPL § 200.40 because the alleged offenses took place as part of the same criminal transaction in accordance with CPL § 40.10 (2) (a). Defendants engaged in a continuous pattern of criminal conduct within a limited geographic area outside a commercial establishment at the same time. Additionally, each defendant's conduct was ostensibly the product of resistance to and defiance of police officers who, by all accounts, issued lawful directives to disperse. Since the offenses occurred at the same location, at the same time, and appear to be defined by similar motivation, the offenses of the above-referenced defendants are of the same nature.
More significantly, the underlying facts of the charged offenses are substantially similar. On January 1, 2017, at approximately 5:30 a.m., roughly 500 people gathered on a public street outside a restaurant. Some 200 police officers responded and attempted to disperse the crowd. Many of those assembled were foul and belligerent toward officers, several of whom threw objects at them. Similar to the charged offenses in Biltsted the offenses charged here were allegedly committed by each defendant at the same place and time. Also similar to Biltsted, defendants' conduct ostensibly shared the same intended objective and target: disrupt public order by defiantly obstructing and interfering with police officers' attempt to disperse the crowd. And, finally, the complaining witnesses of the charged offenses are the same: individual police officers and the public order in general. It is axiomatic, then, that defendants' alleged conduct was based upon the same underlying facts.
Nonetheless, defendant Skerritt claims each case should remain separate because the offenses and arrests are factually different and distinct, and his arresting officer is different from that of other defendants. He further argues the actions and general testimony against the other defendants are of a different type of resistance in terms of language, behavior, officer interaction. Consequently, defendant argues that the various offenses are not a part of the same criminal transaction. This court disagrees.
While it is true that defendants do not all share the same arresting officer, this, by itself, does not render their conduct outside of the scope of the same criminal transaction. Dispositive is that each defendant's conduct occurred at the same place and time, and premised upon the same disruptive and obstreperous conduct. Most significantly is that their respective conduct establishes each was part of the same criminal transaction. That the arresting officers were different neither minimizes nor undermines this. Since defendants' conduct was of the same nature and based upon the same criminal transaction as defined in CPL § 40.10 (2) (a), the People's application for joinder is therefore authorized pursuant CPL § 200.40. B. Judicial Discretion
Merely because joinder is statutorily permitted, though, does not mean the People are automatically entitled to it. Rather, the decision to do so lies within the sound discretion of the court (People v Fisher, 249 NY 419, 424 [1928]; People v Lane, 56 NY2d 1, 8 [1982]). To obtain joinder of defendants, the People must not only establish that the offenses charged in separate instruments are joinable in accordance with the statutory requirements set forth in 200.20 [2], but also that the public interest in avoiding duplicative, lengthy, and expensive trials outweighs the possibility of prejudice to defendants (People v Mahboubian, 74 NY2d 174, 184 [1989]). But the public interest in expediting the disposition of criminal cases should not and must not come at the expense of an individual's right to a fair trial free from undue prejudice (id at 8). Here, irrespective that joinder is authorized under CPL § 200.40, the people's motion must nevertheless denied.
Citing judicial economy, the People claim that joining defendants' cases for a single trial is appropriate because the evidence to be offered in each will substantially overlap. Specifically, they argue that numerous officers will testify at multiple, if not at all, of the trials. Simply because a witness may testify more than once is not, by itself, a basis to compel joinder. And, though the People assert that defendants' trials will be lengthy and duplicative, they offer no support for it. Notwithstanding that the People may opt to have all involved or "arresting" officers testify at each trial, it is entirely unclear why it would be necessary to do so.
While not unsympathetic to witnesses, law enforcement or otherwise, having to provide duplicative testimony, the rights of a defendant may not be compromised in name of judicial economy (Lane at 8). It is important to delineate, though, whose judicial economy is at issue. The People would have this court accept that joinder is in the best interest of the judicial system because engaging in four separate trials will result in an unnecessary expense and monopolize trial parts. This court believes, however, that of paramount concern to the People is shielding their witnesses from cross-examination on prior testimony as well as the burden it places on their resources. Yet, it is the People's responsibility to make a realistic assessment of those cases they have an interest in trying from those that they do not. If, in their estimation, the nature and circumstances of a case are such that a trial is warranted, they bear the responsibility of allocating the necessary resources to effect it. It is of no consequence to the court whether doing so results in a witness testifying several times, generates additional Rosario material, or causes a brief delay in the commencement of another trial.
That said, joinder of the above-captioned cases for trial is also inappropriate because the risk of prejudice to defendants is greater than the public interest in avoiding what the People characterize as lengthy and duplicative trials. They assert defendants will not suffer undue prejudice from the consolidation because each defendant is "on notice" of the crimes that they have been charged with. They further argue it cannot be determined whether defendants' defenses are irreconcilable since it has not been established that each defense counsel will become a second prosecutor relative to the other defendants. This court disagrees.
Even where joinder is authorized and proper pursuant to CPL 240.20, "where the core of each defense is in irreconcilable conflict with the other and where there is significant danger . . . that the conflict alone would lead the jury to infer defendant's guilt[,]" multiple defendants will not be joined (People v Mahboubian, 74 NY2d 174, 184 [1989]). To be sure, irreconcilable defenses would certainly be a basis to deny joinder, but this court need not make such a determination because the Mahboubian "irreconcilable defense" test is inapplicable. Mahboubian arose from a motion to sever where defenses conflicted, not a motion seeking joinder. Although some defenses may ultimately prove to be incompatible or inconsistent, nothing suggests, as defendant Parker claims, that defenses will be irreconcilable nor must they be to impede joiner.
That being said, where defenses are inconsistent, there exists a substantial danger that co-defendant's lawyers will indeed find themselves acting as a second prosecutor. This is particularly acute where, as here, the cases are premised upon the same events and similar allegations such that it increases the likelihood each defense counsel will impute guilt to the other defendants. Thus, regardless of whether it is a likelihood that defenses are irreconcilable, the mere possibility they will collide is too strong to ignore.
Finally, there also exists a risk of jury confusion. Due to the strikingly similar nature of the alleged conduct, a jury may be unable to adequately separate one defendant from another. Such similarity enhances the risk that a jury will either confuse the testimony against each, or worse, hold each responsible for the other irrespective of clear and proper instructions.
This is not to say that joinder would be of no benefit. Of course, saving time in an already congested and overburdened judicial system is always helpful, but never at the expense of providing a defendant with a fair trial. Whatever benefit there may be, though, is outweighed by the risk of substantial prejudice to defendants. Accordingly, it would be an improper exercise of judicial discretion to order that defendants be joined for trial. The People's motion to join the above-captioned dockets is therefore denied.
This constitutes the decision and order of the court. Dated: November 27, 2017 ENTER ___________________________________ David J. Kirschner, J.C.C.