Opinion
2017BX021378
03-19-2018
The PEOPLE of the State of New York, Plaintiff, v. Cheryl COLLAZO, Defendant.
The People's motion to consolidate is decided as follows:
MOTION TO CONSOLIDATE DOCKETS–GRANTED
On May 24, 2017 defendant was charged under docket number 2017BX021378 with Aggravated Harassment in the Second Degree [PL § 240.30(1)(b) ] based on an alleged phone call she made to the complainant, Wendy Rivera, stating, in sum and substance, "I'm going to put you in a chokehold. I hope your grandkids die." As a result of the charge, a temporary order of protection was issued on behalf of the complainant. On July 7, 2017 defendant was charged under docket number 2017BX027125 with Assault in the Third Degree [PL § 120.00(1) ], Criminal Contempt in the Second Degree [PL § 215.50(3) ] and Harassment in the Second Degree [PL § 240.26(1) ] based on an alleged physical altercation with the same complainant, Wendy Rivera and two other individuals and a violation of the temporary order of protection.
The People now move to consolidate the dockets pursuant to CPL § 200.20(2)(b) and CPL § 200.20(2)(c). In support of their motion, the People claim that although the charges in each case are based on different transactions, they are of such a nature that proof of the first offense would be material and admissible as evidence in chief upon proof of the second. The People further contend that the two dockets should be joined because the same complainant will testify in each case.
Defendant, in opposition to the People's motion, contends that allowing evidence of one incident in a trial of the other would prejudice her inasmuch as it would constitute inadmissible propensity evidence and further, there is sufficient good cause to deny joinder of the dockets.
After reviewing the submissions of the parties, 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.
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 docket 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 charge in the first case with respect to defendant's alleged threatening telephone call is relevant to establish defendant's motive and/or intent to allegedly assault the complainant in the second case (see People v. Molineux , 168 NY 264 ; People v. Bongarzone , supra; People v. Torra , 309 AD2d 1074 ) 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 ). Therefore, the Court finds that the public interest and judicial economy would best be served by the consolidation of these two dockets.
Additionally, "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 ). Finally, defendant does not allege she has important testimony to give on one docket and a strong need to refrain from testifying on the other [see CPL § 200.20(3)(b) ; People v. Lane, supra; People v. Simpkins, 110 AD2d 790 ; People v. Cherry, supra ; People v. Shuang Huang , 24 Misc 3d 1225(A), 2009 NY Slip Op 51616(U) ]. Thus, based on the foregoing, consolidation of the dockets 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 ).
Accordingly, the People's motion to consolidate docket number 2017BX027125 and docket number 2017BX021378 is granted .
The branch of the motion requesting leave to make further motions, if necessary, after the People provide discovery, is granted. All motions should be made within the time prescribed by the rules of the Court.
Order entered accordingly.
This constitutes the decision and order of the Court. The Clerk of the Court is directed to forward a copy of this order and memorandum to the attorney for the defendant and the District Attorney.