Recitation pursuant to CPLR 2219[a] of the papers considered in review of this motion. Papers Numbered Notice of Motion and Affidavits Annexed 1 DECISION AND ORDER Defendant is charged with one count of Criminal Obstruction of Breathing (PL §121.11) and one count of Harassment in the Second Degree (PL §240.26) under docket CR 10794-20. The information alleged that on or about October 28, 2020, defendant grabbed the complaining witness by her neck and began to apply pressure which inhibited her breathing. Defendant was produced and arraigned on October 29, 2020. An order of protection which directed defendant to stay away from the complaining witness, her home, her school and to refrain from any other contact except for contact or communication permitted by a family or supreme court in a custody, visitation or child abuse or neglect proceeding was issued. Defendant was advised of the issuance of the order of protection and the contents of the order. On February 17, 2021, defendant was arraigned on one count of Criminal Contempt in the Second Degree (PL §215.50[3]) under docket CR 1542-21. The information alleged that on February 12, 2021, the defendant approached the complaining witness from docket CR 10794-20 and spoke to her in violation of the temporary order of protection. The People now move to consolidate dockets CR 1542-21 and CR 10794-21. The People argue that the facts and the testimony will overlap, and that judicial economy would best be served by consolidation. Consolidation may be appropriate when “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 a trial of the second, or proof of the second would be material and admissible as evidence in the chief upon a trial of the first.” People v. Johnson, 64 A.D. 2d 140, 141 [1978] aff’d 48 N.Y. 2d 925; see also CPL §200.20[2][b]; CPL §100.45[1]. “To obtain consolidation the applicant must demonstrate to the satisfaction of the court not only that the offenses charged in the separate indictments are joinable in accordance with the statutory criteria…but also that combination for a single trial is an appropriate exercise of discretion…” People v. Lane, 56 N.Y. 2d 1, 7, 436 N.E.2d 456, 451 N.Y.S.2d 6 [1982]. Once the People make this demonstration, the burden shifts to the defendant to demonstrate prejudice. Id. at 8. The Court must weigh “the public interest in avoiding duplicative, lengthy and expensive trials against the defendant’s interest in being protected from unfair disadvantage.” Id. The People argue that the above-entitled case falls squarely within the statutory criteria of CPL §200.20[2][b] and that the public interest in avoiding duplicative, lengthy and expensive trials prevails. The People have satisfactorily demonstrated that the offenses charged in CR 1452-21 and CR 10794-21 are joinable in accordance with CPL §200.20[b] and §100.45 [a] and that considering them as a single docket for trial is an appropriate exercise of discretion. More specifically, the People have established that evidence will overlap in dockets CR 1542-21 and CR 10794-21 and the testimony will come from the same witness as to each transaction. People v. Paraschiv, 169 A.D. 2d 739 [2d Dept. 1001], lv denied 77 N.Y. 2d 909 [1991]; People v. Grate, 122 A.D. 2d 853 [2d Dept. 1986] lv denied 68 N.Y. 2d 1000[1986], Separate trials would require the complaining witness to give cumulative and repetitive testimony, which would be similarly burdensome to the court. Considering the public interest in avoiding duplicative and lengthy trials, judicial economy and in the absence of opposition by defendant alleging unfair disadvantage, the People’s motion to consolidate dockets CR 10794-21 and CR 1452-21 is hereby GRANTED. Dated and Entered: September 2, 2021
