The People of the State of New York, v. Romare Weston, Defendant. (2023)

The defendant is charged in the instant indictment with Attempted Assault in the First Degree and other related charges in connection with an incident alleged to have occurred on November 18, 2022. The indictment also charges co-defendants NG and JP  ¹ with various offenses stemming from the same incident.

RELEVANT BACKGROUND

On December 6, 2022, the defendant was arrested in connection with the instant charges. At his criminal court arraignment on December 7, 2022, bail was set in the amount of $200,000 insurance company bond (ICB) / $100,000 cash / $200,000 partially secured bond (PSB).

In late December, the defendant and the co-defendants were indicted and jointly charged under the instant indictment.² On January 25, 2023, the defendant and co-defendant NG were arraigned on the indictment in Supreme Court. On that same date, the People consented to Huntley/Wade/Dunaway hearings as to the defendant and to Wade/Dunaway hearings with respect to co-defendant NG.

On March 3, 2023, counsel for co-defendant NG requested a psychiatric examination of his client pursuant to Criminal Procedure Law (CPL) article 730.

On March 28, 2023, while the results of co-defendant NG's 730 examination were still pending, the People filed a Certificate of Compliance (COC) asserting that they have disclosed and made available to the defendant all known material and information that is subject to discovery, together with a Statement of Readiness (SOR) declaring their readiness for trial.

On April 13, 2023, upon application of the defendant, his bail was reduced to $100,000 ICB / $75,000 cash / $100,000 PSB without electronic monitoring or to $50,000 ICB / $50,000 cash / $50,000 PSB with electronic monitoring.

On June 28, 2023, co-defendant NG's examination results were received. He was deemed unfit to proceed and remanded to the Office of Mental Health (OMH) for treatment.

Meanwhile, the defendant's case proceeded to a pre-trial hearing and conference which was scheduled for June 6, 2023. Defense counsel was unable to appear on said date and the matter was adjourned to June 22, 2023. On June 22, 2023, the People extended a plea offer which was rejected. The People made the representation that "the offer will be pulled at the commencement of the hearings" (6/22/23 tr at 4). The matter was adjourned to August 15, 2023, for hearings and trial (id. at 5).

On August 15, 2023, the People answered not ready because the assigned assistant was "currently engaged with another trial" before another Justice of this court  ³ (8/15/23 tr at 2). The People submitted that the adjournment should not be chargeable to the People pursuant to CPL section 30.30(4)(d) because the defendant "is joined for trial with the co-defendant," who had been found unfit (8/15/23 tr at 2-3). The matter was adjourned to August 30, 2023, for hearings only.

On August 30, 2023, the People answered ready for hearings, but defense counsel was unavailable. The People represented that the case could not procedurally move forward unless a motion to sever was filed and granted (see 8/30/23 tr at 3). The matter was adjourned to October 4, 2023, for hearings and trial.

On October 4, 2023, the People answered ready for hearings but again asserted that the case could not go forward procedurally given the status of the co-defendant. The defendant conceded that the defendant and the witness who made the identification were known to one another. The defendant having conceded the Wade issue, the parties agreed that the remaining issues to be determined at the hearings only pertained to the defendant and not the co-defendant. A Huntley/Dunaway hearing was conducted and the defendant's motion to suppress was denied.

At the conclusion of the hearing, the defense stressed the fact that the defendant has been incarcerated since the beginning of this case on December 6, 2022, and declared their readiness to proceed to trial immediately (see 10/6/23 tr at 49-50). In response, the People made the following record:

[T]his defendant is still joined under the same indictment with [NG.] And it's the People's position that we can't move forward to trial procedurally until a motion to sever has been filed. The People would like to respond to that in writing and until one is filed, we procedurally cannot move forward to a trial date

(id. at 49). At the defendant's request, the court then set an expedited briefing schedule. The defendant's motion to sever was to be filed and served by October 11, 2023 and the People's response was to be filed and served by October 18, 2023.

The defendant now moves, pursuant to CPL section 200.40, to sever his case from that of his co-defendant for the purpose of separate trials. The People oppose the motion on the grounds that the motion is untimely and lacks merit as the defendant and co-defendant's cases are properly joined under CPL section 200.40(1)(c).

DISCUSSION

Timeliness

Generally, all pretrial motions, including a motion to sever, must be served or filed within 45 days after arraignment and before commencement of trial (CPL § 255.20[1]). The defendant was arraigned in Supreme Court on January 25, 2023. Thus, it is clear that this motion, filed on October 11, 2023, is beyond the 45-day statutory period. However, "the court must entertain and decide on its merits, at any-time before the end of the trial, any appropriate pre-trial motion based upon grounds of which the defendant could not, with due diligence, have been previously aware, or which, for other good cause, could not reasonably have been raised within the period specified" (CPL § 255.20[3]).

Here, the circumstances giving rise to the instant motion occurred well after the 45-day deadline. Co-defendant NG was found unfit to proceed on June 28, 2023, more than five months after the defendant's arraignment. The co-defendant was then remanded to OMH and his case was essentially marked off-calendar until such time as he is determined to be fit to stand trial. Meanwhile, the defendant's case continued in the normal course of criminal proceedings. By their own admission, it was not until August 15, 2023, that the People first represented that the case could not procedurally move forward as the defendant was still joined under this indictment with the co-defendant. Notably, on June 22, 2023, when the court first scheduled the matter for hearings and trial to commence on August 15, 2023, the People did not assert that the matter could not move forward to hearings and trial due to the co-defendant's status. Rather, the People requested an August date for hearing and trial and advised the defense that the plea offer would be "pulled at the commencement of the hearing" (see 6/22/23 tr at 4). As such, the issues raised in the instant motion could not reasonably have been raised within the statutory deadline.

In the interest of justice and for good cause shown, particularly in light of the specific circumstances of this case, the court exercises its discretion to address the merits of the motion.

Merits

"Two or more defendants may be jointly charged in a single indictment provided that all the offenses charged are based upon the same criminal transaction" (CPL § 200.40[1][c]). Criminal transaction is defined as "conduct which establishes at least one offense, and which is comprised of two or more or a group of acts either (a) so closely related and connected in point of time and circumstance of commission as to constitute a single criminal incident, or (b) so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture" (CPL § 40.10[2]). 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]). Here, the defendant and remaining co-defendant are charged with various offenses stemming from an incident alleged to have occurred on November 18, 2022. Specifically, it is alleged that they acted in concert in the commission of the crimes of assault and intimidation of a witness who purportedly provided video surveillance to the police in an unrelated case involving individuals known to co-defendant NG. The acts attributed to the defendant and co-defendant are, without question, "closely related and connected in point of time and circumstances of commission as to constitute a single criminal incident." Accordingly, the defendants here are properly joined.

However, upon a showing of good cause, a court has the discretion to order "that any defendant be tried separately from the other or from one or more or all of the others" (CPL § 200.40[1]). Good cause includes a finding that the defendant or the People will be unduly prejudiced by a joint trial (id.).

The defendant moves for severance on the ground that his fundamental right to receive a speedy trial is prejudiced by being "forced" to wait for "his trial" until his co-defendant is deemed fit to proceed (Defense Counsel Aff [Def Aff] at 7, 10).He asserts that his co-defendant was declared unfit to proceed to trial on June 28, 2023 and, to date, the co-defendant's determination remains unfit to proceed. While acknowledging that the co-defendant is not "purposely delaying the proceedings," the defendant nevertheless contends that the co-defendant's fitness "has caused and can potentially cause unnecessary delay in violation of [his] individual rights" (id. at 14). The defendant emphasizes that he is "currently being held on substantial bail" and "eagerly awaits his trial" (id. at 11). Citing to People v Wiggins, 31 NY3d 1, 10-16 (2018), the defendant maintains that detaining him "indefinitely" until his co-defendant is determined fit to proceed is "extraordinarily unfair" and "unreasonable" and violates his fundamental right to a speedy trial.

The defendant further argues that given the nature of the delay and the co-defendant's unfitness, a clear defense strategy has not been presented by the co-defendant (Def Aff at 18). He contends that it is therefore impossible to determine if there exist conflicting or antagonistic defenses that may result in an unfair trial (id.).

In opposition, the People argue the defendant's severance motion is premature because "[i]t is common practice for the co-defendant to be re-evaluated again within six months from the first exam, which took place in May of 2023 [and] it is expected for the co-defendant to be reassessed as to his mental fitness in the next few weeks/months" (People's Memorandum of Law [Memo] at 3). Similarly, on the record on October 6, 2022, the assigned assistant represented that is it "likely" that the co-defendant will "be reevaluated in the next few weeks, one to two months" and that "there is a possibility that he might come back fit and would be able to return to court and face the charges against him and [the] case could proceed to trial" (10/6/23 tr at 49 [emphasis added]).

The People submit that unlike the "extraordinary delay" found in Wiggins, the case relied upon by the defense, the delay here does not establish the existence of good cause "that would rise to the level of prompting severance" (Memo at 4). As such, they maintain that "severance at this point is premature and improper" (id.).

The People further argue that the defendant failed to raise any issue "as to a conflict between the defendants, difference[s] in trial strategies, or inconsistencies in their defense" which could compel severance (Memo at 4).

"It is well settled that severance motions are addressed to the sound discretion of the trial court..." (People v Watkins, 10 AD3d 665, 665-666 [2d Dept 2004]; see People v Mahboubian, 74 NY2d 174, 183-184 [1989]). The court is afforded "reasonable latitude" in exercising its discretion to sever, and in doing so, the court must weigh the public interest 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]).

Undue prejudice includes "[p]rejudice to a defendant that is caused by delay in bringing him to trial and is not confined to the possible prejudice to his defense" (Wiggins, 31 NY3d at 18, quoting Moore v Arizona, 414 US 25, 26-27 [1973]). Indeed, as acknowledged by the Court of Appeals in Wiggins, "a lengthy period of pretrial incarceration detrimentally impacts an accused individual in ways that go beyond specific impairment of the defense" (31 NY3d at 18). The Court further observed,

Inordinate delay, wholly aside from possible prejudice to a defense on the merits, may seriously interfere with the defendant's liberty, whether he is free on bail or not, and . . . may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends

(Wiggins, 31 NY3d at 18, quoting Moore, 414 US at 27). Moreover, the Court of Appeals has "long recognized that '[s]ociety, as well as the defendant, has an important interest in assuring prompt prosecution of those suspected of criminal activity' " (Wiggins, 31 NY3d at 6, quoting People v Staley, 41 NY2d 789, 792 [1977]).

The People submit that the motion here is premature because "it has been less than one year since this incident occurred and it has been less than four months since the co-defendant [ ] was found unfit" (Memo at 4). However, as remarked by the Wiggins Court, "the answer to the question 'how long is too long?' is a difficult one to resolve," but in answering it, we must be guided by certain basic principles, including that "an accused's right to be presumed innocent is protected by the right to prompt justice" (31 NY3d at 6).

Here, a 730 examination was ordered for the co-defendant almost eight months ago and it has been four months since the co-defendant was found unfit to proceed. The People submit that there is "a possibility" that the co-defendant might be found fit at his next evaluation in a few weeks or months. That the co-defendant might possibly be found fit does little to protect this defendant's right to prompt justice.

Further, it bears noting that the speedy trial statute only provides for the exclusion of "a reasonable period of delay when the defendant is joined for trial with a co-defendant as to whom the time for trial has not run and good cause is not shown for granting a severance" (CPL § 30.30[4][d] [emphasis added]). In this case, the People declared themselves ready for trial seven months ago on March 27, 2023, and yet the matter has not proceeded to trial. Moreover, and most significantly, defendant has spent more than ten months in pre-trial incarceration awaiting trial on the charges lodged against him. This case cannot remain at a standstill awaiting a determination as to when, if ever, the co-defendant will be found fit.

Prompt prosecutions remain fundamental to our criminal justice system. Although some delays are often inevitable and justifiable, the convenience of trying cases together does not justify the indefinite pre-trial incarceration of a defendant. Considering the circumstances presented here, the court finds that the defendant has shown good cause that he will be unduly prejudiced by continuing to be forced to wait for a joint trial with the co-defendant. Accordingly, the defendant's motion to sever his trial from that of his co-defendant is granted and a separate trial is ordered.

CONCLUSION

For the reasons stated herein, the defendant's motion for severance is granted and a separate trial is ordered.

This constitutes the decision and order of the court.

Dated: October 25, 2023

Brooklyn, New York

Hon. Joanne D. Quiñones, J.S.C.

FOOTNOTES

1.   Co-defendant JP took a plea and was sentenced before this court on June 27, 2023.

2.   A notice of indictment indicates that the grand jury voted to indict the defendant on December 12, 2022. The indictment was filed on December 23, 2022.

3.   After being informed that the Justice presiding over the assigned assistant's trial was "out," the People amended their record to stated that the matter was being adjourned and the assigned was "not currently engaged [on] trial" (8/15/23 tr at 3).

Joanne D. Quiñones, J.