Judges Garcia, Singas, Cannataro and Troutman concur. Chief Judge Wilson dissents in an opinion. Judge Rivera dissents in a separate opinion.
The defendant raises various challenges to his convictions for two counts of murder in the second degree and two counts of tampering with physical evidence. We conclude that the trial court did not err in denying the defendant’s motion to sever the charges relating to each murder from each other. With respect to the improper, undisclosed business relationship between the defendant’s trial counsel and an Assistant District Attorney (ADA) involved in the defendant’s prosecution, the record supports the trial court’s determination that although this arrangement created a potential conflict of interest, it did not operate on the defense and thus did not require vacatur of the conviction. As to the defendant’s remaining claims, we conclude that they are either without merit or unreviewable, and affirm. I. This appeal arises from Edward Mero’s convictions for two separate murders, committed almost two years apart and tried together. The first victim was the defendant’s roommate, who was found dead in their shared apartment in 2013 after a fire that occurred under circumstances that later raised questions about her cause of death. The second victim was a woman whom defendant had hired to go on a date with him in December 2014; her body was found in a shallow grave in May 2015. The defendant was arrested in 2017 and charged with two counts of murder in the second degree and two related counts of tampering with physical evidence. The charges were joined in a single indictment, and the defendant moved to sever them pursuant to CPL 200.20 (3). He argued that the cases “could not be any more different” because the victims were unrelated and their deaths occurred nearly two years apart under dissimilar circumstances, that his defenses for each would be different, and that the evidence against him for each murder was “underwhelming.” The trial court denied the motion, explaining that the distinct evidence relating to each murder would enable the jury to consider separately the proof for each charge, and joinder thus would not unduly prejudice the defendant. The jury convicted the defendant of both murders and the associated tampering charges. During trial, defense counsel reported an incident to the trial court that ultimately resulted in dismissal of a juror. Counsel explained that a juror had been present during a “boisterous” and “inflammatory” conversation in the courthouse lobby. She admitted to the court that she had made “derogatory comments” about her client.1 The parties agreed to strike the juror. In December 2019, the defendant moved to vacate his convictions under CPL 440.10, arguing that his trial counsel and the ADA who prosecuted him had an improper business relationship that constituted a conflict of interest. A hearing revealed that the defendant’s trial counsel had paid the ADA to write several briefs for her clients over a four-year period. The trial court denied the motion to vacate, concluding that although there was a potential conflict of interest, it did not operate on the defense. The defendant appealed the judgment of conviction and sentence and the order denying his CPL 440 motion, claiming, among other things, that the trial court abused its discretion in denying the motion to sever and erred in denying the motion to vacate due to a conflict of interest. The Appellate Division affirmed the judgment and the order. On severance, the Court reasoned that the defendant’s characterization of the evidence for each murder as “underwhelming” belied any suggestion that proof of one murder was more significant than proof of the other, and that the defendant’s argument that the crimes “could not be any more different” refuted his contention that the jury would struggle to consider them separately (see 221 AD3d 1242, 1250 [3d Dept 2023]). The Appellate Division agreed with the trial court that the potential conflict of interest did not operate on the defense and rejected the defendant’s other challenges to the conviction. Two Justices dissented with respect to severance, taking the view that the proof of the second murder was “significantly more abundant in quantity and significant in scope” than the proof relating to the first murder (id. at 1253 [Reynolds Fitzgerald, J., dissenting in part]). The dissenting Justices concluded that, even with limiting instructions, the jury would likely “focus on the abhorrent common nature of the crimes,” rather than “the fundamental differences of proof” (id.). A dissenting Justice granted leave to appeal (40 NY3d 1095 [2024]), and we now affirm. II. We begin with the defendant’s motion to sever the charges related to the first murder from those related to the second murder. CPL 200.20 (2) (c) allows joinder of offenses “based upon different criminal transactions” that “are defined by the same or similar statutory provisions and consequently are the same or similar in law” (CPL 200.20 [2] [c]). There is no dispute that joinder of the offenses under this provision was proper in the first instance. The defendant was charged with two counts of murder in the second degree and two corresponding counts of tampering with physical evidence, and acknowledged that joinder was “permissible” in moving to sever. Additionally, there were several overlapping witnesses who testified regarding both murders, namely the medical examiner and a jailhouse informant to whom the defendant had confessed committing both murders. Where counts have been joined under CPL 200.20 (2) (c), the CPL provides that the trial court has discretion to sever them if doing so would be “in the interest of justice and for good cause shown” (id. 200.20 [3]). This provision has its origins in a 1936 amendment to the Code of Criminal Procedure that allowed joinder of “two or more acts or transactions constituting crimes of the same or a similar character which are neither connected together nor parts of a common scheme or plan” (Code Crim Proc §279 [eff 1936]). The statute specifies two situations that establish good cause: first, where there is “[s]ubstantially more proof on one or more such joinable offenses than on others and there is a substantial likelihood that the jury would be unable to consider separately the proof as it relates to each offense”; and second, where there is “[a] convincing showing that a defendant has both important testimony to give concerning one count and a genuine need to refrain from testifying on the other, which satisfies the court that the risk of prejudice is substantial” (CPL 200.20 [3] [a], [b]). The statute expressly notes that good cause is not limited to these grounds (see id. 200.20 [3]), and we have explained that “a defendant’s fundamental right to a fair trial free of undue prejudice” must be protected when offenses are joined for trial (People v. Lane, 56 NY2d 1, 8 [1982]). Denial of a defendant’s motion to sever is reviewed for abuse of discretion (see People v. Ford, 11 NY3d 875, 879 [2008]). The defendant’s arguments before us on severance are cursory, and primarily summarize the points made by the Appellate Division dissent. The defendant asserts that “the jury was incapable of considering the proof separately with respect to each offense” because the proof of each crime was “markedly different” and “dissimilar.” But that is generally true whenever offenses are joined pursuant to CPL 200.20 (2) (c), and the key question is whether it would be difficult for the jury to consider separately the proof for each offense, a point we address below. The defendant does not show there was “[s]ubstantially more proof” of the first offense than the second (CPL 200.20 [3] [a]). Rather, he characterized the amount of proof for each as similarly “underwhelming,” and asserted that there was a “clear danger” the jurors would treat the evidence cumulatively because of the “abhorrent nature of the allegations.” Even if we were to accept that characterization of the evidence, the question, again, is whether the jury would find it difficult to segregate the proof for each set of offenses (see Ford, 11 NY3d, at 879; United States v. Werner, 620 F2d 922, 929 [2d Cir 1980] [despite the risk that juries may use evidence cumulatively where charges are joined for trial, " 'the objection disappears' " provided that " 'the accused's conduct on several separate occasions can properly be examined in detail' " and " 'the only consideration is whether the trial as a whole may not become too confused for the jury' " (quoting United States v. Lotsch, 102 F2d 35, 36 [2d Cir 1939] [L. Hand, J.])]). As both the trial court and the Appellate Division concluded, the defendant did not make that showing here. The trial court gave thorough instructions to the jury, once before trial began, once before jury deliberation began, and once in response to a note requesting a readback of the instructions.2 Absent evidence to the contrary, we assume the jurors followed these instructions (see People v. Stone, 29 NY3d 166, 171 [2017]; see also People v. Adames, 42 AD3d 328, 329 [1st Dept 2007] ["(T)he court's jury instructions were sufficient to prevent the evidence of (one incident) from having any prejudicial effect with respect to the (joined incident)"]; cf. People v. Davis, 225 AD3d 62, 75 [1st Dept 2024] ["(I)t cannot be fairly said that the evidence was easily segregable in the minds of the jurors where the trial court failed to give a limiting instruction to that effect"] [internal quotation marks and citation omitted]).3 Given the facts presented here, the defendant failed to demonstrate “a substantial likelihood that the jury would be unable to consider separately the proof as it relates to each offense” (CPL 200.20 [3] [a]).4 The defendant and Judge Rivera in dissent suggest that joinder inevitably prejudiced the defendant given the “heinous” nature of the charged crimes (Rivera, J., dissenting op at 13). However, the defendant points to nothing akin to the “unique” and “peculiar” context in People v. Shapiro that mandated severance—circumstances that included what this Court termed “aberrant sexual practices,” the aggregation of 64 counts of one offense with 2 counts other, more serious offenses, and a request by the defendant to testify regarding one set of offenses, but not the other (50 NY2d 747, 755-756 [1980]). Moreover, we note that the Appellate Division Departments have permitted joinder of homicides on numerous occasions (see e.g. People v. Bonner, 94 AD3d 1500, 1501 [4th Dept 2012]; People v. Perez, 47 AD3d 409, 411 [1st Dept 2008]; Adames, 42 AD3d at 329; People v. Oliveira, 2 AD3d 122, 123 [1st Dept 2003]), and nothing in our case law suggests joinder is impermissible solely because of the nature of the crime. None of the other factors to which Judge Rivera points indicates that the trial court abused its discretion in declining to sever (see Rivera, J., dissenting op at 12-14). The dissent notes the People’s statement at oral argument that proof of the second murder was stronger than proof of the first (see id. at 12), but proof of joined offenses will rarely be identical in strength. Additionally, CPL 200.20 (3) (a) provides for severance if the jury cannot segregate proof—a showing which, as noted, was not made here. The dissent describes the trial as “complex” (Rivera, J., dissenting op at 14), but that does not mean the jury could not segregate the evidence of each charge. Finally, both dissents make sweeping contentions regarding the CPL’s joinder and severance provisions. Judge Rivera takes the view that “wholly unrelated offenses” cannot be joined “because of the inherent prejudice to a defendant from propensity evidence” (Rivera, J., dissenting op. at 8-9; see also id. at 9 n 1). But joinder of factually unrelated offenses does not necessarily present a greater risk of prejudice than joinder of factually related offenses (see e.g. People v. Forest, 50 AD2d 260, 262 [1st Dept 1975] [risk of "conviction by reason of ( ) cumulative effect" required severance where "all three crimes (were) of a similar nature"]; cf. Herring v. Meachum, 11 F3d 374, 378 [2d Cir 1993] ["(B)ecause the evidence with respect to each murder was distinct and easily compartmentalized, the risk of jury confusion at petitioner's trial was significantly limited"]). The Chief Judge would go even further, saying that offenses may be joined under CPL 200.20 (2) (c) only if all the evidence of one offense would be admissible in the case in chief of the other (see Wilson, Ch. J., dissenting op at 2). But the Legislature addressed joinder under this circumstance when it enacted CPL 200.20 (2) (b), which authorizes joinder of cases in which “proof of the first offense would be material and admissible as evidence in chief upon a trial of the second” (or vice versa) (CPL 200.20 [2] [b]). In any event, all that is before us are the arguments raised by the defendant, who did not contest that CPL 200.20 (2) (c) authorized joinder in the first instance and does not press the dissents’ various points about legislative history or critiques of our joinder scheme. Accordingly, we hold that the trial court did not abuse its discretion in denying the defendant’s motion to sever the charges against him. III. The defendant argues that the improper business relationship between his defense counsel and an ADA who was prosecuting him created an impermissible conflict of interest that required vacatur of his conviction. He first contends that the arrangement created an actual conflict of interest, which requires reversal if not waived (see People v. Solomon, 20 NY3d 91, 95 [2012]). Such a conflict arises when an attorney “has divided and incompatible loyalties within the same matter necessarily preclusive of single-minded advocacy” (People v. Brown, 33 NY3d 983, 987 [2019] [cleaned up and internal quotation marks omitted]). That is not what occurred here. The ADA was paid for drafting four appellate briefs and a motion for a change of venue in other cases litigated outside of the county where this prosecution took place. The record indicates that the work was performed on nights and weekends, without access to defense counsel’s office or files. The defendant also argues, in the alternative, that the arrangement created a potential conflict of interest necessitating reversal. We have held that reversal of a conviction is required if a defendant shows that a potential conflict actually operated on the conduct of his defense (see People v. Sanchez, 21 NY3d 216, 223 [2013]). Evidence that unconflicted counsel would have acted in a “more vigorous, less inhibited manner” may establish this point (People v. Harris, 99 NY2d 202, 211 [2002]). The inquiry presents a mixed question of law and fact, and thus we will reverse only if the Appellate Division’s determination lacks record support (see People v. Ennis, 11 NY3d 403, 411 [2008]). We certainly do not condone the conduct of trial counsel. But the trial court characterized defense counsel’s advocacy as “meaningful” and “zealous[] and effective[]” notwithstanding the incident that led to the removal of the juror within earshot of the disparaging comments about the defendant. The juror was dismissed with the consent of all parties, and no other jurors heard the remarks. The defendant has produced no evidence suggesting the business conflict had anything to do with the removal of the juror, or that it otherwise operated on his defense. Nor is the conflict here akin to that in People v. Shinkle (51 NY2d 417 [1980]). There, the defendant’s attorney left his position with the Legal Aid Society in the months preceding the defendant’s trial and joined the District Attorney’s office in a senior leadership position (id. at 420). We held that the resulting “unmistakable appearance of impropriety” and “continuing opportunity for abuse of confidences” was significant enough to disqualify the entire District Attorney’s office from handling the prosecution (id.). Indeed, this Court noted that the attorney had extensively interviewed the defendant, “was intimately familiar with the contents of his file[,] and assisted in the formulation of defense strategy” (id. at 419). The circumstances here are different. The prosecutor here never represented the defendant, and the record indicates that defense counsel did not share information or confidences with the prosecutor regarding the defendant. The defendant’s reliance on People v. Wandell is similarly misplaced (75 NY2d 951 [1990] [Mem]). We limited our holding to the unique circumstances presented there: the concurrent representation of a defendant and the People’s chief witness against him, following a reversal in a prior case for a similar omission by the same attorney (see id. at 952). The defendant’s remaining claims are meritless. First, the defendant argues that he was deprived effective assistance of counsel, noting defense counsel’s conflict of interest, the incident that led to the removal of a juror, and various other points about trial strategy. As the trial court explained, the disparaging comments made in the courtroom lobby “clearly operated on the defense of the case” to the extent it resulted in the dismissal of a juror. But the court also determined that this incident was unrelated to the potential conflict of interest between defense counsel and the ADA, that the ADA “was not present during the lobby fiasco,” and that there was “no causal relationship between [defense counsel's] disparaging remarks and the business relationship with [the ADA].” The trial court further held that defense counsel provided meaningful representation and was detailed in her work. The defendant makes several other claims about the performance of his trial counsel, including the decision to forgo calling several witnesses and not to investigate a claim about a trooper’s offhand remark. But the defendant failed to demonstrate that these decisions were not strategic. Second, the defendant argues that his convictions are unsupported by legally sufficient evidence, but the record refutes this claim. As to the first murder, the evidence at trial showed that the defendant and the victim had a loud argument the night she died, the victim’s body showed signs she was dead before the fire started, the defendant bragged to coworkers about his ability to get rid of a body by arson and offered contradictory alibi statements to the police, and a jailhouse informant testified that the defendant confessed the murder and arson to him. With respect to the second murder, the evidence showed that defendant was the last person to see the victim, was one of few people with access to the property on which her body was found, got rid of his car shortly after the victim disappeared, implicated himself in an interview with police, and confessed to two jailhouse informants who testified to specific details of the murder. Third, the defendant contends that two men he met in jail, each of whom testified at trial that the defendant had confessed to one or both of the murders, were acting as agents of the state and their statements should therefore have been suppressed. As the Appellate Division correctly noted, a defendant must be able to show that the State was “actively involved in, or even encouraged” the decision to volunteer the statements (221 AD3d at 1248 [internal quotation marks omitted]). The record lacks evidence to that effect. Fourth, the defendant argues that admission of a text message and a short colloquy with investigators constituted an impermissible comment on defendant’s invocation of his right to silence. Without considering the merits of this claim, we conclude that any error was harmless given the court’s curative instruction (cf. People v. McLean, 243 AD2d 756, 756–757 [3d Dept 1997]). Finally, the defendant’s weight of the evidence claim is unreviewable in this Court (see People v. Bleakley, 69 NY2d 490, 495 [1987]; People v. Danielson, 9 NY3d 342, 349 [2007]). Accordingly, the order of the Appellate Division should be affirmed.
