Issue: Where two unrelated offenses have been properly joined because they are based on the same statutory provisions—here, two counts of second-degree murder—is it an abuse of discretion to deny severance where the “heinous” nature of the offenses makes it unlikely that jurors will be able to consider the proof of one independently of the other?

The Holding: Because defendant characterized the amount of proof of both offenses as “similarly ‘underwhelming,’” Mero, 2024 WL 5159857, at *3, he could not establish a right to severance under the provision allowing it when 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” CPL 200.20[3][a].

CAL observes: Discretion, discretion, discretion….

CPL 200.20(3) provides that, where two offenses are joinable but based on different criminal transactions, “in the interest of justice and for good cause shown,” the court may “in its discretion” sever the cases. It then defines good cause as including, but not limited to, situations where: (a) there is “substantially more proof” of one offense and “a substantial likelihood that the jury would be unable to consider separately the proof as it relates to each offense”; and (b) “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.”

A majority of the Court declined to interfere with the discretion given the trial courts. Over separate dissents from Chief Judge Wilson and Judge Rivera, the five-judge majority concluded that the trial court did not abuse its discretion because appellate counsel’s “cursory” arguments did not show that there was “[s]ubstantially more proof” of the first offense than the second (CPL 200.20[3][a]), and, there was no showing that the jury would find it difficult to segregate the proof for each set of offenses, particularly where the court gave repeated limiting instructions. Unfairness, in the eyes of the Court’s majority, is for the Appellate Divisions to remedy, not the high court.

In his dissent, Chief Judge Wilson would have held Molineux “must take precedence over administrative convenience.” He would interpret CPL 200.20(3) as

“incorporating the Molineux rule by requiring severance unless the evidence from each of the joined charges would fit under a Molineux exception. Because there was no applicable exception here, Chief Judge Wilson would have reversed because severance was required.

Judge Rivera would not have gone as far as the Chief Judge. She would have found an abuse of discretion because of “significant risks that the jury would determine guilt based on the appearance of defendant's criminal disposition and that the evidence of guilt on one of the murder counts would spill over and bolster the evidence of the other.”

In fairness to the majority, Judge Halligan’s characterization of defendant’s severance arguments as “cursory” was a fair one. Appellant’s brief focused on a conflict-ofinterest point that was unanimously rejected by the Court. His arguments as to severance amounted to two short paragraphs. The thoughtful dissents from Chief Judge Wilson and Judge Rivera, while on point, resulted from the own consideration of the law and evidence.