Pursuant to CPL §200.40, the People move to consolidate the case of Malek Aleteb, Indictment 1455/2018 with that of the defendants Albadeh, Aziz and Alghazali in Indictment 102/2018. This Court is familiar with the facts and circumstances having previously decided the omnibus motions in 102/2018, as well as the DNA issue in that same indictment.The facts and circumstances arise out of a home invasion robbery of the home of Messrs. Alghami and Aljuhaim. The apartment at the time of the robbery was occupied by the three complaining witnesses Alghami, Moharm and Aldeen. In the course of the crime injury was caused to Mr. Aldeen, and damage was done to the residence. The People contend that the defendant Aleteb entered the apartment first by forcing his way in. Defendants Albadeh, Aziz and Alghazali were arrested the same day. Aleteb was arrested on June14, 2018.The defendant Aleteb opposes consolidation on numerous grounds. First the defense opposes on the grounds that the statements of the previously arrested co-defendants raise a Bruton v. U.S., 391 US 123 (1968) problem. When the three initial defendants were arrested they gave statements on video to the police. Two of the defendants, Alghazali and Albadeh, made statements placing Aleteb at the robbery. In particular while they disclaimed any participation in the robbery, they both acknowledged the presence of a fourth individual and identified Mr. Aleteb by name as “Malik” (People’s Affirmation p 4). In their statements they claimed that they were present doing an innocent transaction and place Mr. Aleteb with them. Of note the police observed four people unload the forcibly taken property but only apprehended three of them immediately after their being observed.When Mr. Aleteb was arrested he made no post arrest statement.The DNA evidence appears to exclude Aleteb. Albadeh and Aziz were allegedly identified as being participants by the DNA analysis. Alghazali was excluded by the analysis. It appears that Aleteb was not identified as being at the scene by the DNA analysis.The evidence to be proffered as to Mr. Aleteb consists of multiple photo identifications six months after the incident. No confirmatory line up or other procedures were done after Aleteb’s arrest. It should be noted that the photo identifications were made despite the fact that the fourth robber wore a mask during the course of the robbery. Further there is no physical evidence that ties Mr. Aleteb to the scene and as stated the forensic evidence can be argued as to exclude him from being present.The issue is whether trying Mr. Aleteb with the other defendants when the core of his defense, which is ‘I wasn’t there and I didn’t do it’, is in irreconcilable conflict with the other defendants such that the conflict between the defenses would lead the jury to infer the defendant’s guilt. This Court, faced with a pre-trial motion must apply this standard prospectively, based on its discretionary assessments of the strategies and evidence as forecast by the parties. People v. Mahboubian, 74 NY2d 174 (1989). Rather than be forced to re-try the case after verdicts, the better practice is to decide the severance motion at a time when the evidence is available to both sides and the defenses, if any, beginning to cohere.Mr. Aleteb argues that the DNA results excluding him, and the two defendants’ self incriminating statements that name Mr. Aleteb, would be antagonistic to the other defendants and mutually exclusive and irreconcilable. Severance is 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 portrayed to the trial court, that the conflict alone would lead the jury to infer defendant’s guilt. Mahboubian, 74 NY2d. Additionally, he argues that the common nationality of Mr. Aleteb with the other defendants would in this current climate further prejudice him.The People argue principally that efficiency and economy drive the determination. To that extent they are entirely correct. There is no doubt that the same witnesses, civilian complainants, police officers and scientists would likely testify in both trials. There is also no doubt that the joint trial of the defendants would serve to insure judicial economy. “Where proof against the defendants is supplied by the same evidence, only the most cogent reasons warrant a severance” People v. Bornholdt, 33 NY2d 75, 87 (1973). Where the defendants are charged with acting in concert, in all cases a strong public policy favors joinder because it expedites the judicial process, reduces court congestion, and avoids the necessity of recalling witnesses. Further it also assures that there not be inconsistent verdicts between and among defendants arising out of the same facts.The People further argue that they perceive no antagonism between the defenses because Mr.Aleteb’s possible misidentification defense is not in conflict with the co-defendants’ claim of innocence. The People’s analysis as demonstrated below wholly misses the mark. The determination of whether the matter should be consolidated requires more nuanced parsing.The People also conflate the determination to grant a severance with the determination to grant consolidation, and in doing so shift the burden to the defense, where it does not belong in the motion to consolidate. For example, Mahboubian arose from a motion to sever where defenses conflicted, not a motion seeking joinder. Merely because joinder is statutorily permitted, though, does not mean the People are automatically entitled to it. Rather, joinder lies within the sound discretion of the court. People v. Fisher, 249 NY 419, 424 (1928); People v. Lane, 56 NY2d 1, 8 (1982). The decision to grant or deny a separate trial is vested primarily in the sound judgment of the trial judge, and defendants’ burden on appeal so to demonstrate abuse of that discretion is a substantial one. At the level of the trial court, the issue is purely a matter of judicial discretion guided by the applicable case law. 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 CPL §200.20(2), but also that the public interest in avoiding duplicative, lengthy, and expensive trials outweighs the possibility of prejudice to defendants. Mahboubian, 74 NY2d at 184. Simply because a witness may testify more than once is not, by itself, a basis to compel joinder. While not unsympathetic to witnesses, law enforcement or otherwise, having to provide duplicative testimony, the rights of a defendant may not be compromised in the name of judicial economy. Lane, 56 NY2d at 8. 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. Here, irrespective that joinder is authorized under CPL §200.40, the people’s motion must nevertheless denied.The defense alleges that should the defendants be joined, the three previously indicted defendants may seek to in effect prosecute Aleteb in attempt to minimize their culpability or to prove that they were minor figures, shifting blame to Mr. Aleteb, thus providing antagonistic defenses, as in Mahboubian. The danger is that Mr. Aleteb would in effect be convicted by spillover rather than on the evidence beyond a reasonable doubt. The essence is to insure a fair trial. People v. Cardwell, 78 NY2d 996 (1991). Because defenses are inconsistent, there exists a substantial danger that in this case the co-defendants’ lawyers will find themselves acting as a second prosecutor. Indeed a number of them have not opposed joinder. The danger is particularly acute where, as here, the cases are premised upon the same events and similar allegations which 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.The issue also in terms of severance and judicial economy is whether failing to sever would allow the parties to create, as a result of the defenses and the evidence, “…the sort of compelling prejudice that could have been avoided by the grant of the requested severance” Mahboubian, 74 NY2d at 186. While it is possible in this matter that the jury could credit Aleteb’s claim of non-participation and also credit any other defense of the other three defendants, the testimony that there were four robbers makes it far more compelling that Mr. Aleteb may be convicted on the basis of the statements of the co-defendants, thus the Bruton problem.A. The Bruton problemThe defense presents the issue of the Bruton problem by identifying statements that are those of co-defendants implicating Aleteb. In Bruton v. U.S., 391 US 123 (1968), the Supreme Court held that, despite a limiting instruction, it was unrealistic to assume that a jury could be relied upon to disregard the “powerfully incriminating” confession of a co-defendant in assessing the guilt of a defendant. According to the Bruton Court, even with a limiting jury instruction, the introduction of a non-testifying co-defendant’s confession incriminating a jointly tried defendant is a violation of that defendant’s Sixth Amendment right to confront the witnesses against him or her. Therefore, prosecutors as a general rule, not willing to sever the trials of co-defendants where the confession of one implicated the other and not willing to forego the use of the confession against the confessor, attempted to cure the constitutional defect by redaction of references to jointly tried defendants to preserve the ability to conduct joint trials. Thereafter the Court in Richardson v. Marsh, 481 US 200 (1987), allowed the admission of a non-testifying co-defendant when the redaction was the replacement of the co-defendant’s name with in effect a symbol like the letter “X” or ” i.e.”. The common redaction involves the use of pronouns such as “ he,” “she,” “they” and “others” or other neutral terms such as, “my friend” or “individual” as substitutions for defendants’ names when they appear in co-defendants’ confessions.The Court next considered the issue in Gray v. Maryland, 523 US 185 (1998), as to whether a symbol or neutral pronoun redaction was an acceptable method of compliance with the Bruton-Richardson line of cases. Gray involved a three defendant robbery case. The confession of a non-testifying defendant was admitted against defendant Gray with a limiting instruction. The Court vacated Gray’s conviction holding that the introduction of the confession violated Gray’s rights under the Confrontation Clause as defined in Bruton. The Court found that, despite its redaction, the confession was no different in its incriminating nature than that in Bruton. Blank spaces, symbols, or substituted words like “deleted” were not sufficient to prevent the jurors from linking the obvious omissions in the statement to the other defendant in the trial. Further, an obvious deletion would “…call the jurors’ attention specially to the removed name…” and all a juror would have to do is look to the defense table to identify whose name had been redacted. Gray, id. at 193. The obvious redaction would “encourag[e] the jury to speculate about the reference,” which in turn might “overemphasize the importance of the confession’s accusation-once the jurors work out the reference,” which is the essence of prejudice. Id. Because of the danger of speculation that Court found the confession in Gray, as well as the entire practice of symbol redaction, to be prohibited under Bruton.The Court, in finding symbol redaction insufficient to protect the rights of a defendant, distinguished the confession in Gray from that in Richardson: Bell’s confession, despite the redactions, still referred to the existence of Gray, whereas the confession in Richardson had been purged of all indicia of the existence of any other person. The Court concluded that Richardson did not place all inferentially incriminating statements outside the scope of Bruton’s protections. Rather, “the kind of, not the simple fact of, inference” was what mattered. Gray, id. at 196. Richardson placed outside the scope of Bruton’s rule those statements that incriminate inferentially and are thus permitted. “[I]nference pure and simple cannot make the critical difference” Id. at 195. In Richardson, the confession made only indirect references to the co-defendant and became incriminating only when linked to other evidence at trial, while in Gray the confession was redacted in such a way as to “obviously refer directly to someone, often obviously the defendant, and… involve[d] inferences that a jury ordinarily could make immediately….” Id. at 196.Although the indirect inference in Richardson did not implicate Bruton’s Sixth Amendment protections, the direct inference in Gray did. The Court suggested that more could have been done to protect Gray, such as removing all references to the co-defendants, as had been done in Richardson. But more was not done, and because it was likely that the jury ignored its limiting instruction and connected the blank spaces to Gray, the confession had been impermissibly admitted, according to the Court, in light of Bruton.In this matter redaction of the name of Mr. Aleteb would not cure the problem. Given the DNA evidence and fact that the perpetrator wore a mask, thus calling into question the photo array identification, the better practice in order to avoid the Bruton-Gray problem would be a severance, given that much of the co-defendants’ confessions would have to be limited to only what they did and no other information. It would cost the prosecutor most of the meaning and value of the co-defendants’ broader statements.While it remains permissible to use redactions that require independent evidence to link the statement to the defendant, in some matters no adequate redaction can be had without ineluctably drawing the jury’s attention to the silent defendant relying on his right to be silent. Co-defendant confessions reduce the assurance that a defendant will be protected by his own silence. Here, where there are two such statements even redaction will so reduce the constitutional protection for what is ultimately convenience’s sake and is thus insufficient to cure the prejudicial effect of letting the jury hear the statement.B. Other claimsThe defense also raised the issue that Mr. Aleteb, being of Yemini descent would be in effect lumped in by the jury with the co-defendants and convicted based upon ethnicity. While such is possible there is no basis for this Court to accept such ethno-stereotypical assumptions in the absence of evidence either emerging out of some scientific study or something other than rank speculation.ConclusionAs a consequence, this Court finds under the facts of the case no redaction of the statements of either or both of the co-defendants will be sufficient to protect the fair trial rights of Mr. Aleteb, and had the defendants been indicted together this Court would have likely granted a severance motion. Where the motion is for consolidation the burden is on the People as opposed to a motion to sever where the burden is with the defendant seeking severance. 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. This Court finds that the People have not borne their burden on the motion for consolidation. The People’s motion to join the above-captioned dockets is therefore denied.This constitutes the decision and order of the Court.Dated: April 17, 2019Bronx, New York
