| People v Martinez |
| 2018 NY Slip Op 07329 [165 AD3d 1288] |
| October 31, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Adelby Martinez, Appellant. |
Paul Skip Laisure, New York, NY (Anders Nelson of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Jean M. Joyce ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (AlexanderJeong, J.), rendered December 9, 2015, convicting him of burglary in the second degree (fourcounts), petit larceny (four counts), and criminal trespass in the third degree (two counts), upon ajury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law and as a matter of discretion in the interestof justice, the People's motion to consolidate indictment No. 8114/13 with indictment No.7185/14 for the purposes of trial is denied, and new trials are ordered on the separateindictments.
In two separate indictments, the defendant was charged with four counts of burglary in thesecond degree and related charges, pertaining to four separate home burglaries in Brooklyn. TheSupreme Court granted the People's motion to consolidate the indictments for trial. Following ajury trial, the defendant was convicted of all submitted charges.
The defendant's contention that the evidence was legally insufficient to establish his identityas the perpetrator of the crimes related to 158 Miller Avenue is unpreserved for appellate review,as he did not specify this ground in support of his motion to dismiss at trial (see CPL470.05 [2]; People v Hawkins, 11NY3d 484, 492 [2008]). In any event, viewing the evidence in the light most favorable to theprosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legallysufficient to establish the defendant's identity as the perpetrator beyond a reasonable doubt.Moreover, upon our independent review pursuant to CPL 470.15 (5), we are satisfied that theverdict of guilt as to those crimes was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]).
The defendant's contention that his rights under the Confrontation Clause of the SixthAmendment were violated when the Supreme Court admitted a nontestifying DNA analyst'sreport linking him to DNA evidence recovered at one crime scene is unpreserved for appellatereview (see CPL 470.05 [2]). In any event, while admission of the DNA report violatedthe defendant's Confrontation Clause rights (see People v Austin, 30 NY3d 98, 104 [2017]; People v Brown, 13 NY3d 332,338 [2009]; see also Crawford v Washington, 541 US 36, 53-54 [2004]), the error washarmless beyond a [*2]reasonable doubt (see People v Hardy, 4 NY3d 192,198 [2005]). The DNA analyst who testified at the trial had analyzed the raw data from theevidence collected at the crime scene and the DNA collected from the defendant and reached hisown conclusions (see People v Austin, 30 NY3d at 104). Thus, the erroneously admittedreport was cumulative, as the expert who testified reached the same conclusion after analyzingthe raw data (see People v Rawlins,10 NY3d 136, 156 [2008]; People vCartagena, 126 AD3d 913, 913 [2015]; People v Gonzalez, 120 AD3d 832, 832 [2014]).
Nevertheless, as the People correctly concede, the judgment of conviction should be reversedand a new trial ordered based on the Supreme Court's error in denying the defendant's for-causechallenge to a prospective juror on the ground that he evinced "a state of mind that [was] likely topreclude him from rendering an impartial verdict based upon the evidence adduced at the trial"(CPL 270.20 [1] [b]). "[A] prospective juror whose statements raise a serious doubt regarding theability to be impartial must be excused unless the juror states unequivocally on the record that heor she can be fair and impartial" (People v Chambers, 97 NY2d 417, 419 [2002]; seePeople v Bludson, 97 NY2d 644, 645 [2001]; People v Arnold, 96 NY2d 358, 362[2001]; People v Hayes, 61 AD3d992, 992-993 [2009]). Here, the prospective juror indicated that, given his experience in anarea prone to crime, it was a "legitimate question" whether he could be fair to the defendant andthe prospective juror was not sure whether he could be fair. The prospective juror's initialresponse was not rehabilitated by his collective response with the rest of the prospective jurorsthat he could be open, fair, and impartial (see People v Hutthinson, 150 AD3d 887, 888-889 [2017])."[N]othing less than a personal, unequivocal assurance of impartiality can cure a juror's priorindication" of predisposition against a defendant (People v Arnold, 96 NY2d at 364).
Since the defendant subsequently exercised a peremptory challenge to remove theprospective juror and later exhausted his allotment of peremptory challenges, the convictionshould be reversed and a new trial ordered (see CPL 270.20 [2]; People vBludson, 97 NY2d at 645-646; People v Hayes, 61 AD3d at 993).
Moreover, we agree with the defendant that the Supreme Court improvidently exercised itsdiscretion in granting the People's motion to consolidate indictment No. 8114/13 with indictmentNo. 7185/14 for the purposes of trial. The offenses were properly joinable, as they were definedby the same or similar statutory provisions (see CPL 200.20 [2] [c]). Where, as here, theoffenses were not part of the same criminal transaction, the determination of a consolidationapplication is discretionary, with the court weighing "the public interest in avoiding duplicative,lengthy and expensive trials against the defendant's interest in being protected from unfairdisadvantage" (People v Lane, 56 NY2d 1, 8 [1982]; see CPL 200.20 [5])." '[I]n all cases a strong public policy favors joinder, because it expedites the judicialprocess, reduces court congestion, and avoids the necessity of recalling witnesses' " (People v Dean, 1 AD3d 446, 448[2003], quoting People v Mahboubian, 74 NY2d 174, 183 [1989]). However,"compromise of a defendant's fundamental right to a fair trial free of undue prejudice as thequid pro quo for the mere expeditious disposition of criminal cases will not be tolerated"(People v Lane, 56 NY2d at 8).
Here, there was a substantial disparity in the evidence tying the defendant to the offensescontained in the separate indictments, which presented a strong possibility that the jury convictedthe defendant of the offenses charged in indictment No. 8114/13 by reason of the cumulativeeffect of the evidence (see People v Daniels, 216 AD2d 639, 640 [1995]; People vStanley, 81 AD2d 842, 843 [1981]; cf. People v Simpkins, 110 AD2d 790, 792[1985]). Furthermore, separate trials would not have resulted in the duplication of evidence (cf. People v Cromwell, 99 AD3d1017 [2012]). Accordingly, the Supreme Court should have denied the People'sconsolidation motion, and the indictments should be tried separately upon remittitur.
In light of our determination, the defendant's challenge to the sentence imposed has beenrendered academic.
The defendant's remaining contentions are unpreserved for appellate review and, in anyevent, without merit. Dillon, J.P., Roman, Hinds-Radix and Brathwaite Nelson, JJ., concur.