DECISION AND ORDER Defendant Michael Morgan (hereinafter: Defendant Morgan) is charged pursuant to Kings County Indictment IND-74465-22 with the crimes of Murder in the Second Degree (Penal Law [hereinafter: P.L.] §125.25([1]), and other related charges. Defendant Camellia Dunlap (hereinafter: Defendant Dunlap) is charged under the same, above-listed Kings County Indictment, with the crimes of Criminal Possession of a Weapon in the Second Degree (P.L. §265.03[1][b]), and other related charges. These charges stem from allegations that after Defendant Dunlap handed Defendant Morgan a firearm which Defendant Morgan used to shoot and kill Matthew Webb (hereinafter: decedent). Defendant Morgan, by his attorneys, filed the instant motion to sever the above-listed defendants from one another, pursuant to Criminal Procedure Law (hereinafter: C.P.L.) §200.40, Bruton v. United States, 391 US 123 (1968); and People v. Mahboubian, 74 NY2d 174 (1989). Defendant Morgan argues that recorded, inculpatory statements of his co-defendant will result in deprivation of his due process right to a fair trial. See Crawford v. Washington, 124 S Ct 1354 (2004). In addition, Defendant Morgan argues that the co-defendants’ defenses will be antagonistic to each other, and that if Defendant Morgan were to testify on his own behalf at trial, the co-defendant’s attorney will not be subject to the limitation imposed on the prosecution pursuant to People v. Sandoval, 34 NY2d 371 (1974). The People filed an answer in opposition to Defendant Morgan’s motion. The People maintain that, if the defendants were not severed for the purposes of trial, this potential issue can be remedied by having a single trial with multiple juries. For the reasons set forth below, the Defendant’s motion for severance is DENIED. Joinder of defendants under a single indictment are proper pursuant to C.P.L. §200.40(1)(b)&(c) when those offenses are based upon a common scheme or plan, or all the offenses charged are based upon the same criminal transaction, as that term is defined by subdivision two of C.P.L. §40.10. Furthermore, in determining whether two acts are part of the same criminal transaction, the court must look at the nature of the crime and the underlying facts (People v. Griffin, 137 AD2d 558, 559 [2d Dept 1988]). Where proof against the defendants is supplied by the same evidence only the most cogent reasons — for example, a finding that a defendant will be unduly prejudiced by a joint trial — warrants a severance. People v. Hernandez, 260 A.D.2d 399, 400 (2d Dept 1999), lv. den., 93 NY2d 925 (1999); People v. Bornholdt, 33 NY2d 75, 87, cert. den. sub nom Victory v. New York, 416 US 905; People v. Zimmerman, 48 AD3d 492 (2d Dept 2008); People v. Martins, 306 AD2d 423, lv. den. 100 NY2d 596 (2003). “It is well settled that severance motions are addressed to the sound discretion of the trial court…Severance is not required solely because of hostilities among defendants, differences in their trial strategies, or inconsistencies in their defenses, and is compelled only where the core of each defense is in irreconcilable conflict with the other and where there is a significant danger that the conflict alone would lead the jury to infer a defendant’s guilt” (People v. Watkins, 10 AD3d 665, 665-666, lv. den. 3 NY3d 761 [2004]; People v. Johnson, 296 AD2d 422, lv. den. 99 NY2d 537 [2002]; People v. Echevarria, 282 AD2d 470, 471, lv. den. 96 NY2d 862 [2001]; People v. Jackson, 249 AD2d 564, 565, lv. den. 92 NY2d 899 [1998]; People v. Clark, 233 AD2d 460 [2d Dept 1996]; People v. Apolinar, 208 AD2d 548, 549, lv. den. 84 NY2d 1028 [1995]; People v. Correa, 188 AD2d 542, 543, lv. den. 81 NY2d 883 [1993]; see also People v. Cardwell, 78 NY2d 996, 997 [1991]; Mahboubian, 74 NY2d at 184). Without more, Defendant Morgan’s merely conclusory statement that the defendant’s individual defenses are antagonistic requiring severance, fail to establish their defenses are in irreconcilable conflict warranting said relief. In People v. Molineux, 168 NY 264 (1901), the Court of Appeals held that proof of one offense may be admissible and relevant at the trial of another offense to demonstrate motive, intent, identity, absence of mistake or accident, or a common scheme or plan. These Molineux principals have been codified in C.P.L. §200.20(2)(b) by allowing such offenses to be joined in one indictment. C.P.L. §200.20(2)(b) provides that offenses may be joined even when based upon different criminal transactions, if the offenses to be joined are of such nature that evidence of one of the offenses would be material and admissible as evidence in chief upon a trial of the other offense, and vice versa. In addition, public policy strongly favors joinder for trial “because it expedites the judicial process, reduces court congestion, and avoids the necessity of recalling witnesses.” Mahboubian, at 183 (1989). As such, the trial court, in reaching its determination, must weigh the interests of the public in avoiding multiple trials that will be duplicative, lengthy or costly, against a defendant’s right to a trial that is fundamentally fair and devoid of undue prejudice (People v. Streitferdt, 169 AD2d 171, 176 (1st Dept 1991), lv den. 78 NY2d 1015[1991]). After reviewing the moving papers and the documents contained in the court file, it has been established: that the alleged time and place of occurrence for each above-captioned indictment is identical; most of the charges against the defendants are identical and all of the charges arise out of the same criminal transaction; and that the defendants have failed to demonstrate that each defendant’s defense is in irreconcilable conflict with the defense of his or her co-defendant, which would have satisfied the standard of a significant danger that the alleged conflict, standing alone, would lead the jury to infer the guilt of either or all defendants (People v. Williams, 48 AD3d 715 [2d Dept 2008]; Watkins, 10 AD3d at 666; see also People v. Lane, 56 NY2d 1 [1982], People v. Mack, 111 AD2d 186 [1985], lv. den. 66 NY2d 616 [1985], People v. DeMeo, 139 AD2d 758 [2d Dept 1988]). Moreover, any potential issue arising from conflicting statements between the defendants will be remedied by multiple juries at the time of trial. See Bruton v. US, (supra). Likewise, any potential prejudice caused resulting from the cross-examination of Defendant Morgan by counsel for his co-defendant would also be remedied by a trial with multiple, simultaneous juries. Defendant Dunlap’s jury will be excused from the proceedings should Defendant Morgan testify on his own behalf at trial. As Defendant Morgan would only be testifying in his own defense case and not as part of the People’s case-in-chief, Defendant Morgan’s testimony would not be admissible to establishing guilt as to Defendant Dunlap. As such, with Defendant Dunlap’s jury excused during Defendant Morgan’s direct testimony, there is no legal basis upon which Defendant Dunlap’s attorney would be permitted to cross-examine Defendant Morgan, abrogating any potential prejudice to Defendant Morgan from an unrestrained cross-examination by counsel for his co-defendant. This is in effect severance. Accordingly, for the reasons set forth above, the Defendant Morgan’s motion pursuant to C.P.L. §200.40 is hereby DENIED. This constitutes the decision, opinion and Order of the Court. Dated: December 4, 2023
