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THE CONSOLIDATED TRIAL OF TWO SEPARATE CRIMINAL TRANSACTIONS, COUPLED WITH THE ABSENCE OF LIMITING JURY INSTRUCTIONS, CONSTITUTED REVERSIBLE ERROR (FIRST DEPT). ​

The First Department, in a full-fledged comprehensive opinion by Justice Rodriguez, over a two-justice comprehensive concurring opinion, determined that the consolidated trial of two separate criminal transactions, without appropriate limiting jury instructions, was reversible error:

The first indictment charged defendant with, among other counts, attempted murder. In relation to the first indictment, no gun was recovered, the alleged victim was not injured, and the evidence showed that there was at least some degree of animus between defendant and the alleged victim. The defense theory was thus that the discharged gun was in fact the victim’s. The second indictment, concerning an incident nearly six months later at a different location, charged defendant with possession of a firearm that was recovered on the person of his companion. The principal evidence supporting the second indictment was a set of suggestive jail phone call recordings.

Consolidated trial of indictments like the two at issue here is not necessarily error. However, defendant suffered impermissible prejudice as a result of (1) the nature and quantum of the evidence presented and (2) the specific respective theories of the prosecution and the defense. Supreme Court thus abused its discretion and committed error in trying the indictments together.

Although prejudice may in general be adequately ameliorated by appropriate limiting instructions, the jury received no such instruction here. People v Davis, 2024 NY Slip Op 00746, First Dept 2-13-24

Practice Point: This comprehensive majority opinion and and the comprehensive concurring opinion cannot be fairly summarized here. Consult this opinion for the law associated with consolidation of indictments for trial.

 

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