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Criminal Court, City of New York.

The PEOPLE of the State of New York, Plaintiff, v. Gowayne MORGAN, Defendant.

The People of the State of New York, Plaintiff v. Chandler Arnold, Defendant.


Decided: March 16, 2018

Legal Aid Society, New York City (Joy Wang of counsel), for Defendant Gowayne Morgan. Lance Fletcher, New York City, for Defendant Chandler Arnold. Cyrus R. Vance, Jr., District Attorney, New York County (Matthew Thiman of counsel), for the People.


The People moves This Honorable Court to consolidate the above captioned matters for trial pursuant to CPL 200.20 (2) and CPL 40.10 (2). The motions are joint for decision purposes only. For the reasons set forth below, the motion to consolidate is denied.


Defendant Gowayne Morgan, a 28year old Black male domiciled in Bronx, New York, represented by Legal Aid is charged in docket 2018CN000170 with one count of Public Lewdness [Penal Law § 245.00 (a) ] and one count of Exposure of a Person [Penal Law § 245.01]. This charge is the first contact with the criminal court based upon his Record of Arrest and Prosecution sheet (rap sheet). The complaining witness is a plain-clothes Amtrak Police Officer (hereinafter referred to as APO–2), who allegedly observed the behavior which forms the basis of the criminal charge. At arraignment the court deemed complaint an information. APO–2 did not provide a photo of this defendant. At arraignment on January 9, 2018, People consented to Huntley/Dunaway Hearings and court adjourned to February 7, 2018 for Hearings and Trial. At the appearance of all parties on February 7, 2018, People served and filed the instant motion to consolidate.

Defendant Chandler Arnold, a 45year old White male domiciled in Washington DC, represented by private counsel is charged in docket 2018CN000177 with one count of Public Lewdness [Penal Law § 245.00 (a) ] and one count of Exposure of a Person [Penal Law § 245.01]. This charge is the first contact with the criminal court based upon his Record of Arrest and Prosecution sheet (rap sheet). The complaining witness is a plain-clothes Amtrak Police Officer (hereinafter referred to as APO–1) who observed the behavior which forms the basis of the criminal charge. At arraignment the court deemed complaint an information. APO–1 took a photo of defendant, which is attached to the file. At arraignment on January 9, 2018 the court scheduled defendant motions to be due by January 26, 2018 and court adjourned to February 14, 2018 for Response and Decision. At the appearance of all parties on February 14, 2018 People likewise served and filed again the instant motion to consolidate.

Both defendants were arrested in the State and County of New York for their albeit individual conduct but identically described actions, at the identically same time and same place, in an Amtrak station public bathroom located at 235 West 33rd Street, November 8, 2017 at about 1:47PM in the afternoon. The language in the complaints against both defendants are identical in each information although written by different officers APO–1 and APO–2.

The Positions of The Parties


People argue that both criminal court complaints are joinable because "[t]hey are based upon the same act or upon the same criminal transaction," as defined in CPL 40.10, thus warranting consolidation pursuant to CPL 200.20 (2) (a). People's Affirmation at 2. People further contend that given the overlap in the evidence and witnesses that "judicial economy would be best served by consolidation," citing in support, People v. Mahboubian, 74 NY2d 174, 183–84 (1989). People's Affirmation at 3.


Neither defense counsel has submitted Opposition Papers. This court nonetheless will review the People's papers to determine whether there is an adequate basis to grant the relief sought herein.


This court finds People's argument is without merit in their argument that consolidation is proper pursuant to CPL 200.20 (2) 1 , which governs the joinder of offenses for a single defendant, which is not the case herein. Rather, CPL 200.20 (4) governs the joinder of multiple defendants charged with different offenses:

"When two or more indictments against the same defendant or defendants charge different offenses of a kind that are joinable in a single indictment pursuant to subdivision two, the court may, upon application of either the people or a defendant, order that such indictments be consolidated and treated as a single indictment for trial purposes." CPL § 200.20 (4).

Which is also not at issue in the instant motion since the defendants here are not charged with different offenses.

The instant motion to consolidate is rather governed by CPL 200.40, "joinder of defendants and consolidation of indictments against different defendants." This section is made applicable to informations, prosecutor's informations and misdemeanor complaints pursuant to CPL 100.45 (1). CPL 200.40 permits the court to consolidate charges against two or more defendants, charged separately, into a single accusatory instrument if they could have been so charged initially under CPL 200.40 (1).

Under the facts presented herein where it is alleged the defendants did indeed commit the exact same conduct and actions, People did not, but may have argued that two defendants may be jointly charged in a single indictment [accusatory instrument] pursuant to CPL 200.40 (1) where:

"(a) all such defendants are jointly charged with every offense alleged therein; or

(c) all the offenses charged are based upon the same criminal transaction as that term is defined in subdivision two of section 40.10."

The People have not argued that the offenses charged are part of "a common scheme or plan," as provided in CPL 200.40 (1) (b), therefore that section is inapplicable.

Notwithstanding that People rely on the erroneous (to wit, CPL 200.20 (2) (a)), it is argued: "The offenses charged on the two separate Criminal Court Complaints are joinable " because "they are based upon the same act or upon the same criminal transaction." People's Affirmation at 2. In sum and substance, alleging that both these cases satisfy the definition of "the same criminal transaction" pursuant to CPL 40.10 (2):

"Criminal transaction" is 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.

To determine whether two or more acts are part of the same criminal transaction, the court must examine the nature of the offenses, and underlying facts of the offenses—such as the victim, time of occurrence, place of occurrence, and date of occurrence (People v. Griffin, 137 AD2d 558, 559 [2d Dept 1988]; see also People v. Spann, 56 NY2d 469, 474 [1982] ). The mere commission of offenses at the same time and place, however, does not constitute the same criminal transaction. For conduct to be part of the same criminal transaction, it need not occur simultaneously, nor must the conduct of each defendant be precisely the same (People v. Biltsted, 151 Misc 2d 620, 627 [Crim Ct, New York County 1991], citing People v. Sharpton, 141 Misc 2d 322 [Crim Ct, Kings County 1988] )2 . Rather, the conduct must be substantively similar in nature of the offenses and the manner of the offenses commission (Summers, 191 Misc 2d at 388). Where the nature of the crimes and the underlying facts are similar, the offenses are deemed a part of the same criminal transaction (People v. Duggins, 3 NY3d 522, 534 [2004] ).

However, the charges against both defendants herein cannot be joined or consolidated as being the same offense when their actions were not connected as a common criminal venture. There is no evidence in the record that the defendants were acting together or in some way aided each other to commit the crime charged. Notwithstanding that both defendants are charged with the same Penal Law violations at the same location and at the same time, nothing in the charging documents indicate that the defendants knew each other or were working in concert or "doing the same activity together" as The People's Affirmation states on page 2. The complaining witnesses in each of the accusatory instruments made no mention of the other defendant whatsoever to believe that they acted together. Particularly of import, is that the pedigree information contained in the respective criminal files are quite diverse from one another: One, 45–year–old white male residing in Washington DC with sufficient assets for private counsel whereas the other defendant, a 28–year–old black male residing in Bronx, NY qualified for publicly paid Legal Aid. The two accusatory instruments do not share a complaining witness, and there is no sworn statement from either deponent APO1 OR APO2 that the defendants acted together or even knew each other. The People are asking the court to engage in improper speculation in the absence of sworn allegations connecting the two quite diverse defendants. This court concludes, regardless that they both engaged in the identical Penal Law violative conduct, at the identically same time, at the identically same place is not dispositive of a common criminal purpose and do not constitute a single criminal transaction as defined by the statute. Consequently, The People have failed to demonstrate that the defendants are properly joinable for consolidation pursuant to CPL 200.40 (1).

Arguendo, even if this court herein had found there is a single criminal transaction pursuant to CPL 200.40 (1), it is not dispositive of whether consolidation for trial is proper under the circumstances at bar. The decision to grant or deny a separate trial is vested primarily in the sound discretionary judgment of the Trial Judge. (People v. Fisher, 249 NY 419, 424 [1928]; People v. Lane, 56 NY2d 1, 8 [1982] ). The People rely on People v. Mahboubian, 74 NY2d 174, 183–84 (1989), in arguing for consolidation in the interest of judicial economy. This language cited by the People regarding judicial economy is merely dicta. Contrary to the People's citing this proposition, the Court in Mahboubian held against consolidation due to a finding of undue prejudice.

The NY Court of Appeals in its decision found that there must be another level of scrutiny in the trial court's decision making on the issue of consolidation of multiple defendants for trial. It is within the discretion of the trial judge to deny or grant consolidation if it finds undue prejudice to any of the defendants. Mahboubian found against consolidation in part because of undue prejudice, which is to be decided within the sole discretion of the trial judge. The People claim herein that the same witnesses would be called to testify at both trials and that the risk of undue prejudice would be minimal since so much of the evidence against each defendant would be relevant and admissible as to the other defendant. There is nothing in the accusatory instruments nor the records as currently exist which indicates that the witnesses are the same, particularly since the charging instruments for the two defendants do not share the same complaining witnesses.

This court agrees with Mahboubian that the goal of the public interest in expediting the disposition of criminal matters and the convenience of the witnesses are laudable goals. However, these public policy goals must not preempt the due process goal to ensure that each defendant herein be given their day in court free from the taint of undue prejudice. This court opines that a consolidated joint trial would even more so be of heightened undue prejudice against each defendant due to the particularly socially repulsive nature of the charges against each defendant. Such joinder at trial would indeed be ripe for an atmosphere rife with undue prejudice, particularly in a jury trial. Perhaps, undue prejudice may be mitigated where the trier of fact is judge rather than jury.


For the foregoing reasons, the People's motion to consolidate the dockets against each defendant is denied.

This constitutes the order and opinion of This Honorable Court.



1.   CPL 200.20 covers situations where defendants (or the same defendant) are charged with different offenses. In such situations, consolidation is mandatory under some circumstances and left to the court's discretion in others. Under CPL 200.20, determination of the application for consolidation is at the court's discretion but is mandatory if the defendants are seeking consolidation of offenses arising out of the same act or transaction. People v. Sharpton, 141 Misc 2d 322 (Crim Ct, Kings County 1988)

2.   First Amendment Protests and Demonstrations with acts of civil disobedience are so strategically planned and orchestrated with volunteer defense counsel in place just for the expected consequence of en masse arrests. Therefore, not only are defendants acting in concert under one criminal transaction, one common purpose, one common scheme to affirmatively violate the law in exercise of their First Amendment Rights, the volunteer lawyers are also acting in concert under one common purpose and one common scheme to protect those defendants under one and the same legal argument. The defense's legal procedural strategy may be to consolidate all the defendants into one accusatory instrument. Such consolidation avoids duplicative expenditure of time, resources and expenses as well as bolster the altruistic underpinnings of the intentionally planned orchestrated commission of the crime being charged. However, People have argued against consolidation of these protester defendants for purposes of trial strategy whereas defendants have argued for consolidation. See, People v. Sharpton, 141 Misc 2d 322 (Crim Ct, Kings County 1988). Day of Outrage Cases. See, People v. Biltstead, 151 Misc 2d 620 (Crim Ct, Kings County 1991).People fought against consolidation of 18 defendants in Sharpton. The defendants in the case at bar had no noble altruistic motives. Nor, did these instant defendants act in concert under one criminal transaction, one common purpose nor one common scheme under the advocacy of lawyers working together with a unified legal strategy. Rather one defendant is represented by private counsel and the other defendant by Legal Aid. What is the People's guiding principle to reach such inconsistent outcomes as to consolidation of multiple defendants?

Sandra E. Roper, J.

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