Opinion
18-0280
07-11-2018
The PEOPLE of the State of New York, Plaintiff, v. Charlene MORISSEAU, Defendant.
Charlene Morisseau, Westchester County District Attorney, Mount Vernon branch, Defendant Pro Se—Docket # 18-0282. Angelo MacDonald, Esq., 200 West 60th Street, Suite 3C, New York, NY 10023, Attorney for Defendant-Dockets # 18-0280, 18-0281.
Charlene Morisseau, Westchester County District Attorney, Mount Vernon branch, Defendant Pro Se—Docket # 18-0282.
Angelo MacDonald, Esq., 200 West 60th Street, Suite 3C, New York, NY 10023, Attorney for Defendant-Dockets # 18-0280, 18-0281.
Adam Seiden, J.
PROCEDURAL HISTORY:
Docket # 18-0282
On July 30, 2015, defendant was charged by misdemeanor complaint with Obstruction of Governmental Administration (P.L. 195.05) and Disorderly Conduct (P.L. 240.20 (4) ). Defendant was arraigned on those charged on July 31, 2015. By Decision and Order dated November 24, 2015, White Plains City Court (J. Press) granted defendant's motion to dismiss the Disorderly Conduct charge for facial insufficiency. The court, however, denied defendant's application to dismiss the charge of Obstruction of Governmental Administration in the Second Degree upon a finding that the accusatory instrument was facially sufficient with respect to that charge. On October 4, 2017, the People filed a superseding misdemeanor information charging defendant with Criminal Contempt in the Second Degree. Defendant was arraigned on that charge on December 6, 2017 in Yonkers City Court by Judge Adrian Armstrong.
Docket # 18-0280
On February 18, 2016, a misdemeanor information charging defendant with one count of Bail Jumping in the Second Degree (P.L. § 215.55) was filed in White Plains City Court. Defendant was arraigned on the charge on July 21, 2016.
Docket # 18-0281
On April 19, 2017, defendant was arraigned on a charge of Obstruction of Governmental Administration. A superseding violation information, dated June 14, 2017, was filed on February 9, 2018 charging defendant with two counts of Disorderly Conduct. Defendant was arraigned on the Disorderly Conduct charges on February 9, 2018.
MOTIONS :
Motion to Dismiss Docket # 18-0282:
On February 13, 2018, defendant filed a two page document labeled Objection # 3. Defendant states that the People filed the superseding information on this docket outside of the statute of limitations, in that the alleged crime occurred in July 2015, greater than two years from when the People filed the superseding information, October 17, 2017. She states that the People previously charged the defendant with disorderly conduct for this conduct, but that on November 24, 2015, the White Plains City Court dismissed the disorderly conduct charge. She argues that the state never re-filed an accusatory instrument within the statutory period. She further argues that after November 24, 2015, she was not required to appear to confront any charge predicated on the alleged events that occurred in the Westchester County Courthouse in July 2015.
In opposition to the defendant's application, the People argue that the defendant's motion is without merit. The People argue that pursuant to CPL 30.10, criminal actions must be commenced within two years of the commission of a misdemeanor. The People state that with respect to this docket, the prosecution was commenced on the day of the incident, July 30, 2015, with the filing of a misdemeanor information, charging defendant with Disorderly Conduct (P.L. 240.20 (4) and Obstruction of Governmental Administration in the Second Degree (P.L. 195.05). That same day, the defendant was arraigned on the charges and entered a not guilty plea. The people announced their readiness for trial the same day. The People argue that on November 24, 2015, the White Plains City court only dismissed one charge, the Disorderly Conduct charge, thereby leaving the Obstruction of Governmental Administration charge pending. On October 17, 2017, the defendant was arraigned on a superseding misdemeanor information, which amended the original charge to Criminal Contempt in the Second Degree. The People argue that despite defendant's claims, she was still obligated to appear on the docket in White Plains City Court, Yonkers City Court, and now this Court, because one charge was still viable and pending.
Accordingly, based on the foregoing, defendant's objection/motion to dismiss is denied. The People did file an accusatory instrument with respect to the alleged incident that occurred at the Westchester County Court house in July 2015, within the statutory period provided for in CPL 30.10. Further, per CPL 100.50, the People filed a timely superseding information on October 17, 2017.
Withdrawal of 18-B Counsel Angelo MacDonald on Dockets # 18-0280, 18-0281
Defendant moves for the removal of Attorney Angelo MacDonald as assigned counsel and for the withdrawal of motions filed by counsel. In support of this application, defendant argued in court and now in her written papers that she had an attorney-client agreement with Mr. MacDonald, wherein he was to provide her with copies of any court filings before submitting them to the court. She maintains that Mr. MacDonald failed to provide her with copies of the motion before filing it with the court. With respect to Docket # 18-0281, defendant argues that she does not want to suppress statement evidence because those statements establish that she requested a medical accommodation from the police. She maintains that Mr. MacDonald's application to suppress these statements will prejudice her defense. With respect to Docket # 18-0280, defendant argues that her prior counsel already filed an omnibus motion, discovery motion and demand bill of particulars for this docket. She states that she gave copies of these documents to Mr. MacDonald. She further states that the People already filed a response to these motions, such that they were fully submitted in White Plains City Court. She maintains that the White Plains City Court, with the consent of the People, already granted her request for a Clayton hearing. Defendant states that she discussed potential witnesses with Mr. MacDonald and informed him that he would need the case transcript to confirm that the Clayton hearing was granted. She further argues that the pre-trial motion period has expired and that Mr. MacDonald, with the filing of the instant motion is giving the People a second opportunity to make arguments it has already lost or waived.
The discretion and responsibility for the selection of assigned counsel rests with the Court. A relationship of mutual confidence between lawyer and client is important to the lawyer's fulfillment of his professional functions. However, "[t]he right of an indigent criminal defendant to the services of a court-appointed lawyer does not encompass a right to appointment of successive lawyers at the defendant's option" ( People v. Wright , 147 AD3d 1088 [2d Dept 2017] (citing People v. Washington , 25 NY3d 1091, 1095 [2015] ). A defendant must demonstrate "good cause for substitution" ( People v. Medina , 44 NY2d 199 [1978] ), such as a conflict of interest or other irreconcilable conflict with counsel (see People v. Sides , 75 NY2d 822 [1990] ; People v. Stevenson , 36 AD3d 634 [2d Dept. 2007] ) before new counsel is assigned. Factors to consider in determining whether there is good cause include, "the timing of the defendant's request, its effect on the progress of the case and whether counsel will provide the defendant with meaningful assistance ( People v. Martin , 41 AD3d 616 [2007] ).
Defendant's application for the removal of Mr. MacDonald as her counsel is denied. The Court finds that defendant's assertions of a disagreement on how and what motions are to be filed by Mr. MacDonald do not demonstrate a serious genuine conflict of interest or irreconcilable conflict warranting the assignment of new counsel. Defendant has had at least three assigned counsel attorneys represent her in these matters before Mr. MacDonald was assigned. Further these matters have been pending for over two years. The court will not further delay the administration of justice with the assignment of new counsel. Accordingly the request to assign new counsel is denied ( People v. Wright , 147 AD3d 1088 [2d Dept. 2017] ).
In light of defendant's April 26, 2016 and April 30, 2016 requests for the Court to decide the motions that have already been submitted by her former attorneys, and to disregard the Notice of Ominibus Motion filed by Mr. MacDonald on Dockets # 18-0280 and 18-0281 on April 25, 2018, that omnibus motion is hereby considered withdrawn.
Motion to Unseal Court Records:
On February 9, 2018, defendant filed a motion for unsealing of court records. In support of the motion, defendant affirms that since the inception of this proceeding, she had requested open access to her court files. She affirms that she first received full access to her court files on February 8, 2018, after the matter was transferred to Mount Vernon City Court from Yonkers City Court. While reviewing her files, defendant observed a sealed yellow, manila envelope. Defendant states that the clerk advised her she could not release the records to defendant because they are "sealed." Defendant states that she never filed to have any records sealed under these dockets and thereby seeks an order from this Court authorizing the clerks of this court to release any and all documents that were previously deemed sealed.
The Court has now had an opportunity to conduct an in camera inspection of the folder and contents of the manila envelope. The manila envelope marked on the outside "Per Hon. MAM NOT ENTITLED TO ENCLOSED DOCUMENTS". This Court will disclose that the packet relates to a FOIL request # 2016-293 made by defendant and/or her former counsel Rachel Filasto. On or about September 21, 2016, the Westchester County Department of Public Safety responded to the request and mailed a copy of its response to "Charlene Morisseau (C/O Counsel), Rachel Filasto, Esq., Harold, Salant, Strassfield & Speilberg, 81 Main Street, White Plains, NY 10601". In the letter defendant was advised the that request was being denied pursuant to "§ 87 (2)(e) of the Public Officers Law as the judicial proceeding in this matter is ongoing at this time." The letter further advised the defendant she could appeal the decision within 30 days and that she could resubmit her request when the proceeding has concluded. Accordingly, the Court finds that the documents contained in the envelope are confidential and defendant is not entitled to review for inspection or have copies of the contents contained in that packet at this time.
Defendant's Pro Se Request for Transcripts for All Court Proceedings:
Defendant pro se seeks an order granting her transcripts of all of her court proceedings on all three dockets since the inception of the matters, free of charge as an indigent defendant. In a handwritten letter dated and filed with this Court on April 26, 2018, defendant states that her request for the "transcript of last court date" is based upon the Assistant District Attorney's claim that he had no recollection of due dates on outstanding motions, even though the court ordered the People to respond. Defendant argues that the People's lack of response on outstanding motions constitutes waiver. A transcript of the April 26, 2018 was prepared. To the extent the defendant has not received a copy she may request one from the court. Also a transcript of the December 11, 2015 court proceeding is in the file.
It is well settled that indigent defendants are entitled to a free copy of the minutes of a prior trial or of proceedings before the grand jury ( People v. Ballott , 20 NY2d 600, 233 NE2d 103, 286 NYS2d 1 [1967] ), a free copy of the transcript of a preliminary hearing ( People v. Montgomery , 18 NY2d 993, 224 NE2d 730, 278 NYS2d 226 [1966] ; People v. West , 29 NY2d 728, 276 NE2d 226, 326 NYS2d 388 [1971] ), a free copy of the transcript of a suppression hearing People ex re. Cadogan v. McMann , 24 NY2d 233, 240 ), and the right to receive any and all exculpatory material that the People may have in their possession ( Brady v. Maryland , 373 US 83, 83 S Ct 1194, 10 L Ed 2d 215, [1963] ). A "timely demand" shall be made for such minutes ( People v. Peacock , 31 N Y 2d 907, 908 ) ).
The right of an indigent defendant to free transcripts is not, however, unlimited. Although an indigent defendant is entitled to a transcript of his/her trial or a preliminary hearing, it has been held that s/he is not entitled to daily minutes ( People v. Abdullah , 23 NY2d 676, 243 NE2d 147, 295 NYS2d 928 [1968] ). In People v. Rivera , 60 Misc 2d 414; 303 N.Y.S. 2d 1 (1969), the trial court denied an indigent defendant's request for a free copy of his entire record, as no appeal had been filed and the defendant had not provided a purpose or need for the entire record. The relief sought by this defendant in this matter, that being a transcript of every court appearance, would allow every defendant, in every criminal case, regardless of reason, to obtain a transcript of all court appearances, thus placing an intolerable and unnecessary financial burden upon the State. While this Court is charged with seeing that each defendant before it receives due process, it also has a responsibility to protect the State against the waste of its funds. This Court has found no case, nor has any been referred to its attention, of a finding that an indigent defendant is entitled to transcripts of her entire record and for each appearance she has made on the record prior to trial. Accordingly her blanket request for a transcript of all court proceedings is denied (Id. ).
Motions for Judicial Notice:
Judicial notice "is knowledge which a Court takes of a matter without evidence having been introduced to establish it" ( People v. Sowle , 68 Misc 2d 569, 571, 327 NYS2d 510 [Fulton County Ct 1971].) "Whether courts will take judicial notice of matters of fact depends on the nature of the subject, the issue involved and the apparent justice of the case." (Id. ) Examples of the sorts of facts of which a court may take judicial notice are "geographical facts and the location of streets" and "public records." (Id. ; ( People v. Suarez , 51 Misc 3d 620, 624 ) ). Courts are not required to take judicial notice of matters of fact, and whether they should do so "depends on the nature of the subject, the issue involved and the apparent justice of the case" ( Hunter v. New York, Ontario & W. R.R. Co. , 116 NY 615, 23 NE 9 [1889] ( People v. Suarez , 51 Misc 3d 620, 624 ).
Judicial Notice of Recalled Bench Warrant
On February 9, 2018, defendant moved this Court to take judicial notice of a recalled bench warrant issued by the Yonkers City Court. Defendant argues that on February 8, 2018, she learned for the first time that the bench warrant issued on March 27, 2017 by Yonkers City Court had been recalled by the same court on April 6, 2017. Defendant states that she was arrested on the warrant on April 3, 2017. She argues that on April 4, 2017, Judge Doren remanded her to the Westchester County Jail on a $5,000.00 bail. Defendant states that she remained in the jail from April 4, 2017 to April 19, 2017.
This Court cannot say with certainty that the bench warrant was in fact recalled but only that it is marked "RECALLED". Whether or not the warrant was recalled is not relevant to the criminal case at bar. However, the bench warrant in the court file is marked "RECALLED" with a red stamp and handwritten notation above "04/05/17 NEWMAN". If the Court finds that this fact becomes relevant during the course of the trial on this matter, the Court will reconsider the defendant's application to take judicial notice of the bench warrant marked "RECALLED". Her application is denied at this time.
Judicial Notice of May 17, 2018 Letter from Yonkers City Court
On May 23, 2018, defendant filed a handwritten letter requesting that the court take judicial notice of a letter from Yonkers City Court, from Marisa Garcia Chief Clerk. The letter states that Certificate of Disposition issued by White Plains City Court Clerk on May 16, 2018 is enclosed. The letter further states "The certificate states that Disorderly Conduct charge (PL 240.20) under White Plains Docket No. 15-1664 was dismissed and sealed on November 24, 2015. Defendant states that before now, Yonkers City Court claimed not to have any certificate. She further states that no certificate was in the Mount Vernon City Court file. She also states that the certificate was not enclosed with the letter from Ms. Garcia.
Defendant's application for judicial notice contains many hearsay allegations. The Court cannot find that Yonkers City Court claimed to not have a certificate or that it was not enclosed with the communication sent to defendant. Further, the court finds that the letter is not relevant to the current criminal court proceedings. Accordingly, defendant's application is denied.
Pre-trial Motions:
Over the course of these proceedings, defendant's former attorneys, defendant in her pro se capacity, and defendant's current counsel Mr. MacDonald have filed numerous pre-trial motions. C.P.L. § 255.20 mandates that all pre-trial motions must be made in the same set of papers and must be served or filed within forty-five (45) days of the defendant's arraignment. The two exceptions are as follows: First, the court must entertain and decide any 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 forty-five day period or included within a single set of motion papers. Second, the Court may, in its discretion, entertain and decide any untimely motion, in the interest of justice and for good cause shown. CPL § 255.20 (3) creates an unambiguous requirement that the defendant show due diligence or good cause before an untimely omnibus pretrial motion may be determined favorably on his behalf regardless of whether the People are prejudiced by the delay ( People v. Coleman , 114 Misc 2d 685, 452 N.Y.S.2d 503, 505, 1982 NY Misc. LEXIS 3545 [NY Sup. Ct. 1982] ).
Docket # 18-0280
Omnibus Motion:
On September 14, 2016, defendant filed an omnibus motion seeking 1) dismissal in the interest of justice, 2) recusal by White Plains City Court Judges, 3) a Dunaway hearing, 4) a Bill of Particulars, 5) discovery, 6) continuing disclosure by the People, 7) to suppress prior crimes or bad acts, or in the alternative, a hearing on the matter, 8) Sandoval and Ventimiglia hearings, 9) preclusion of evidence and 10) a reservation of rights.
On September 15, 2016, the People filed a bill of particulars and a response to the defendant's demand for discovery.
On October 14, 2016, the People filed an affirmation in opposition to defendant's omnibus motion, opposing that branch of defendant's application seeking dismissal in the interest of justice.
After reviewing the Court file, it does not appear that a Decision and Order has been issued on this motion. Although the defendant maintains that the White Plains City Court granted a Clayton hearing before it was transferred to Yonkers City Court, the Court file transferred to Mount Vernon City Court does not provide any indication that a Clayton hearing was in fact granted upon the consent of the People. The People's affirmation specifically opposed the defendant's motion to dismiss in the interest of justice and asked the court to summarily deny the application. Judge Friia, Judge Hansbury and Judge Press of the White Plains City Court recused themselves from the matter on or about October 18, 2016. Judge Shollenberger recused herself on January 27, 2017. The matter was then transferred to the Yonkers City Court on or about February 17, 2017. It further appears that the Yonkers City Court did not render a Decision and Order on the omnibus motion before this matter was transferred to this Court. The Court will now decide the omnibus motion.
In support of the motion to dismiss in the interest of justice, defendant argues that the bail jumping offense is not serious, there was no injury to property or person and no victim. Defendant further argues that she appeared in the courtroom that day, but not for the second call of the matter. Counsel argues that the Court never sent defendant a bench warrant or warrant letter informing her of her new court date. Defendant argues that a dismissal would not impact the safety or welfare of the community.
In opposition the People argue that on December 11, 2015, after being advised to remain in the courthouse for her case to be called, the defendant told the judge that he would need to issue a warrant for her arrest as she would not be returning. The People argue that the defendant did not voluntarily appear in the White Plains City Court within the next thirty days. The People argue that for justice to be served, the State needs parties to a criminal action to appear and answer the charges pending in court. The People maintain that the defendant's failure to appear caused a delay in the prosecution of this case and required members of the Westchester County Police Department warrant squad to locate her and make a further arrest. The People further argue that there is overwhelming evidence of the defendant's guilt as the incident occurred in the presence of Judge Eric Press and was captured on official court record. The People further argue that the defendant has a pending misdemeanor charge on another docket, based upon her refusal to comply with officers' orders during court proceedings. The People argue that the defendant must be tried for her crime in order to punish her and send a message that such conduct will not be tolerated in courtrooms. The People argue that the confidence of the criminal justice system will be negatively impacted should the case be dismissed. The People argue that the defendant, in open court, refused to return to answer to criminal charges, thereby hampering the expediency of justice.
Criminal Procedure Law § 170.40 sets forth the factors to be considered in determining the appropriateness of a dismissal in the interest of justice. A dismissal in the interest of justice is required when "some compelling factor, consideration or circumstance" exists "clearly demonstrating that conviction or prosecution of the defendant ... would constitute ... injustice." See CPL § 170.40. Dismissal should be " ‘exercised sparingly’ and only in that ‘rare’ and ‘unusual’ case where it ‘cries out for fundamental justice beyond the confines of conventional considerations." People v. Belge , 41 NY2d 60, 62 (1976) ; People v. Howard , 151 AD2d 253, 256 (1st Dept 1989).
In consideration of the all the statutory factors set forth in CPL 170.40, the Court finds that dismissal in the interest of justice is not warranted under these circumstances. The defendant's motion to dismiss in furtherance of justice is denied.
Since the People have responded to defendant's discovery demands in their opposition papers and have a long standing policy of open file discovery, that portion of the defendant's motion seeking to compel discovery is denied at this time. The names and addresses of prospective witnesses are not subject to pretrial discovery ( People v. Hvizd , 70 Misc 2d 654 [County Ct. Westchester 1972] ). To the extent the defendant is seeking disclosure of Rosario and Brady material, her request is denied at this time with leave to renew before the trial Judge (see CPL 240.45 ; People v. White , 178 AD2d 674 [2d Dept 1991] ; People v. Goins , 73 NY2d 989 [1989] ). This Court recognizes that the People are under a preexisting duty to disclose any material or exculpatory evidence to an accused where there is a general request or no request, and no additional order of the Court in respect thereto is necessary ( People v. McCann , 115 Misc 2d 1025 [Sup. Ct. Qns. Co. 1982] ; People v. Hvizd , supra ) ).
The People have provided the defendant with a bill of particulars. The function of a bill of particulars is to clarify the pleading, not to serve as a discovery device ( CPL § 200.95 ; People v. Davis , 41 NY2d 678, 679-680 [1977] ; People v. Kyoung Ja Choi , 259 AD2d 423 [1st Dept. 1999] ).
Defendant moves for a Dunaway hearing on the grounds that there was insufficient probable cause to support the charge. A Dunaway hearing is only appropriate to determine whether the People's evidence should be suppressed because it resulted from an arrest devoid of probable cause. The Court is without authority to dismiss charges based upon a lack of probable cause since it is not one of the bases for dismissal of an accusatory instruments listed in the Criminal Procedure Law. ( C.P.L. §§ 170.30 & 210.20 ; see People v. Aiken , 251 AD2d 339 [2nd Dept. 1998] ; People v. Winn , 232 AD2d 438 [2nd Dept. 1996] ; People v. Davidson , 9 Misc 3d 131(A) [2nd Dept. App. Term 2005] ). Accordingly the motion for a Dunaway hearing is denied.
Defendant's motion for a Sandoval hearing is granted and shall be renewed before the trial judge. Since the People have not indicated that they plan to introduce any evidence of defendant's prior bad acts on their direct case, the motion for a Ventimiglia hearing is denied as premature at this time. In the event the People later indicate they plan to introduce such evidence, the defendant may renew the motion before trial.
Defendant moves to preclude statement and identification evidence. In support of this branch of the motion, defendant argues that she has not received any notice of alleged statements made by the defendant to law enforcement. She further argues that she has not received notice of any identification procedure conducted by the police with respect to this case. In light of the fact that the People have not indicated that they plan to introduce statement evidence or identification evidence with respect to this charge, the defendant's application is denied. However, if the People seek to introduce such evidence, defendant may renew her motion.
Lastly, the defendant requests leave to make further motions as necessary. The defendant's motion is denied. C.P.L. § 255.20 is controlling with respect to the time frame for making pre-trial motions and there have been no allegations of good cause for making further motions outside of those time constraints.
Motion for Police Reports:
By letter dated January 9, 2017 and May 31, 2017, defendant requested access to any and all police reports relating to the bail jumping matter.
On March 22, 2018, the People filed six pages is response to defendant's request for a police report. The documents included a cover sheet (District Attorney's Office Yonkers City Court 17-0656), the misdemeanor information, officer statement, bench warrant, and crime report. Those same documents were handed to defendant in Court by Judge Johnson.
Docket # 18-0282
Motion to Compel Discovery:
On August 27, 2015, defendant's former counsel, H. Benhamin Perez filed a discovery demand on the People. On July 26, 2016, August 6, 2016, September 15, 2016 defendant filed pro-se discovery demands contending that discovery was still outstanding and seeking additional discovery.
The People maintain that they prepared a discovery packet to serve upon defendant on December 11, 2015, but she was not present on that date in White Plains City Court during the second calendar call of the case. The People argue that on July 29, 2016, defendant was produced in White Plains City Court and appeared pro se. They argue that on this date, defendant submitted a letter requesting additional discovery. On August 8, 2016, the defendant was produced in White Plains City Court. The People state that they served discovery upon the defendant and the defendant thereafter filed an additional discovery motion. On September 15, 2016, defendant filed a motion seeking a Dunaway hearing and to compel discovery.
On September 15, 2016, the People filed a written response to defendant's discovery demands. The People argue the in each motion, defendant requests information beyond that provided to the defendant previously in open court. The People maintain that through these motions, the defendant makes request for additional discovery and inspection either not in the People's possession or outside the scope of CPL 240. On or about October 7, 2016, defendant filed a reply to the People's response to discovery demands alleging that People's failure to disclose items in their possession and control.
It is incumbent upon the District Attorney to provide full and open discovery ( CPL 240.20(1) ). The Court notes that the Westchester County District Attorney's Office, Mount Vernon Branch, has a long standing policy of "open file" discovery. Since the People have responded to defendant's discovery demands, that portion of the defendant's motion seeking to compel discovery is denied at this time. The names and addresses of prospective witnesses are not subject to pretrial discovery ( People v. Hvizd , 70 Misc 2d 654 [County Ct. Westchester 1972]. As to the defendant's demand for written memorandum, police logs and protocol and guidelines, the CPL does not expressly compel discovery upon demand of these items. "There is no constitutional requirement that reports, notes or memoranda made by the police for their internal use be made available for pre-trial discovery, unless there is exculpatory matter contained therein, and CPL Article 240 does not require such disclosure, unless the prosecution intends to introduce such material or portion thereof at trial" ( People v. Finkle , 103 Misc 2d 985 [Sullivan Co. Ct. 1980] ). In order to be entitled to discovery of tapes and electronic recordings by court order, defendant must show that the state intends to introduce the property at trial. Pursuant to CPL § 240.20 (1)(g) the People shall disclose to the defendant and make available for inspection upon demand "[a]ny tapes or other electronic recordings which the prosecutor intends to introduce at trial " ( People v. Caussade , 162 AD2d 4 [2d Dept. 1990] ; see also People v. Seeley , 179 Misc 2d 42 [Sup Ct. Kings Co. 1998] ). Should the prosecution come into possession or become aware of such recordings, they are under a duty to use reasonable care to prevent their destruction ( People v. Cortez , 149 Misc 2d. 886 [Civ. Ct. NY Co. 1990] ).
To the extent the defendant is seeking disclosure of Rosario and Brady material, her request is denied at this time with leave to renew before the trial Judge (see CPL 240.45 ; People v. White , 178 AD2d 674 [2d Dept 1991] ; People v. Goins , 73 NY2d 989 [1989] ). This Court recognizes that the People are under a preexisting duty to disclose any material or exculpatory evidence to an accused where there is a general request or no request, and no additional order of the Court in respect thereto is necessary ( People v. McCann , 115 Misc 2d 1025 [Sup. Ct. Qns. Co. 1982] ; People v. Hvizd , supra ) ).
Motion to Suppress Statements :
On or about September 15, 2016, defendant filed a pro se motion seeking to suppress statements made to law enforcement, or in the alternative a Dunaway hearing. In a February 9, 2018 pro se Motion for Unsealing of Court Records, defendant states at paragraph # 6 that the White Plains City Court granted her a Dunaway hearing for Docket # 18-0282. However, this Court does not have a Decision and Order from the White Plains City Court demonstrating a Dunaway hearing was granted, nor is there any other official court documents indicating a Dunaway hearing was granted. Accordingly, this Court will now decide this branch of defendant's motion.
Subsequent to the filing of the defendant's pro se motion, the People filed a superseding misdemeanor information, dated October 4, 2017, charging the defendant with one count of Criminal Contempt in the Second Degree. The defendant did not file any new motion papers seeking a Dunaway hearing on the new accusatory. There is no supporting deposition attached to the motion papers. Further there is no court record indicating that she asked the court to apply her motion papers to the new charge. Nevertheless, the people have not filed a CPL 710.30 notice indicating that they plan to introduce any statements defendant made to law enforcement. Accordingly, the motion to suppress statements, or in the alternative a Dunaway hearing is denied at this time.
Motion to Consolidate (# 18-0280 and 18-0282)
On August 8, 2016, the People moved to consolidate the charge of Obstruction of Governmental Administration (the original charge under Docket # 18-0282) with the charge of Bail Jumping (Docket # 18-0280). The Defendant, in her pro se capacity, filed opposition papers on September 9, 2016. Defendant's former counsel, Rachel Filasto, filed papers opposition papers on September 14, 2016. On or about October 17, 2017, the People filed a superseding misdemeanor information on Docket # 18-0282, charging the defendant with Criminal Contempt in the Second Degree. Defendant was arraigned on the charge on December 6, 2017. The People nor the defendant filed any additional papers after the filing of the superseding instrument.
Because the People have now filed a superseding information on the first charge, the Court can no longer consider the People's original motion to consolidate. The charges will remain separate until a new motion to join the new superseding charge with the bail jumping charge is filed or a stipulation by the parties is filed consolidating the two ( People v. Matthews , 41 Misc 3d 1203 (A); 977 NYS 2d 669 [Justice Ct. Tuckahoe 2013] ).
This constitutes the Decision and Order of this Court.