Opinion
Indictment No. 19-0524-01
09-16-2019
THE PEOPLE OF THE STATE OF NEW YORK v. DAVID RILEY and MICHAEL HEADY, Defendants.
HON. ANTHONY A. SCARPING, JR. District Attorney, Westchester County BY: VIRGINIA A. MARCIANO, ESQ. Assistant District Attorney MARIA I. WAGER, ESQ. Assistant District Attorney CLARE J. DEGNAN, ESQ. The Legal Aid Society of Westchester County BY: APRIL A. MCKENZIE, ESQ.
Unpublished Opinion
HON. ANTHONY A. SCARPING, JR.
District Attorney, Westchester County
BY: VIRGINIA A. MARCIANO, ESQ.
Assistant District Attorney
MARIA I. WAGER, ESQ.
Assistant District Attorney
CLARE J. DEGNAN, ESQ.
The Legal Aid Society of Westchester County
BY: APRIL A. MCKENZIE, ESQ.
DECISION & ORDER
Honorable George E. Fufidio Westchester County Court Justice
Defendant, DAVID RILEY, having been indicted on or about May 22, 2019 for attempted robbery in the first degree (Penal Law § 110/160.15 [2]), attempted robbery in the second degree (Penal Law § 110/160.10[2A]), attempted assault in the first degree (Penal Law § 110/120.10[ 1 ]) assault in the second degree (Penal Law § 120.05[2]), assault in the second degree (Penal Law § 120.60 [6]), criminal possession in the second degree (Penal Law § 265.03 [3]) and attempted criminal sale of a controlled substance in the third degree (Penal Law § 110/220.39[ 1 ]) has filed an omnibus motion which consists of a Notice of Motion, an Affirmation in Support and a Memorandum of Law. In response, the People have filed an Affirmation in Opposition together with a Memorandum of Law. Upon consideration of these papers, the stenographic transcript of the grand jury minutes and the Consent Discovery Order entered in this case, this Court disposes of this motion as follows:
A & H. MOTION FOR DISCOVERY, DISCLOSURE AND INSPECTION CPL ARTICLE 240
Except where the People have already disclosed or consented to the inspection and discovery of certain evidence, the Defendant's motion for discovery is granted to the extent provided for in CPL 240. If there any further items discoverable pursuant to Criminal Procedure Law Article 240 which have not been provided to defendant pursuant to this Order, they are to be provided forthwith or the People shall seek a protective order explaining to the Court why certain items have not been provided to the Defendant pursuant to CPL 240.
As to the defendant's demand for exculpatory material, the People have acknowledged their continuing duty to disclose exculpatory material at the earliest possible date upon its discovery (see, Brady v Maryland, 373 U.S. 83 [1963]; Giglio v United States, 405 U.S. 150 [1972]). In the event that the People are, or become, aware of any material which is arguably exculpatory and they are not willing to consent to its disclosure to the defendant, they are directed to immediately disclose such material to the court to permit an in camera inspection and determination as to whether the material must be disclosed to the defendant.
Except to the extent that the defendant's application has been specifically granted herein, it is otherwise denied as seeking material or information beyond the scope of discovery (see, People v Colavito, 87 N.Y.2d 423 [1996]; Matter of Brown v Grosso, 285 A.D.2d 642 [2d Dept 2001]; Matter of Brown v Appelman, 241 A.D.2d 279 [2d Dept 1998]; Matter of Catterson v Jones, 229 A.D.2d 435 [2d Dept 1996]; Matter of Catterson v Rohl, 202 A.D.2d 420 [2d Dept 1994]).
B & C. MOTION TO SUPPRESS PHYSICAL EVIDENCE
While the Defendant moves to suppress evidence on the grounds of an illegal arrest, he offers no sworn allegation of fact in support of this contention and accordingly, his motion is summarily denied on this ground (People v France, 12 N.Y.3d 790 [2009]; People v Jones, 95 N.Y.2d 721 [2001]; CPL 710.60[3][b]; see also People v Scully, 442 U.S. 200 [1979]). Moreover, the Police had probable cause to arrest the Defendant because they had an accusation against him, made by identified citizens, that he had shot the victim (People v Griffin, 15 A.D.3d 502 [2nd Dept. 2005]).
The Defendant has failed to identify, in particular, which physical evidence he seeks to suppress. With respect to evidence that was purportedly found in the victim's car, the victim's phone or his codefendant's Facebook account, the Defendant has failed to make even a base showing how he has standing to challenge evidence taken from these locations. Likewise, with respect to a bullet shell casing found on the street near where the crime is alleged to have taken place, the Defendant again has not shown why that evidence was not abandoned property or that he somehow has an expectation of privacy on the street or in the shell casing itself. If the Defendant can establish standing to challenge any of those things, then the Court will permit him to renew his motions.
The Defendant has also moved to controvert the search warrant used to secure information contained in his Facebook account. Upon review of the four comers of the search warrant affidavit and order, the Court finds that the warrant was supported by probable cause (People v Keves, 291 A.D.2d 571 [2nd Dept. 2002]; see generally People v Badilla, 130 A.D.3d 744 [2nd Dept. 2015]). The warrant affidavit demonstrated communication via Facebook between both co-defendants even after David Riley was arrested and incarcerated and it adequately explained how relevant evidence of this crime might be found in the Defendant's Facebook account.
With respect to the breadth of the warrant, the Defendant has, again, not shown what evidence was seized as a result of the over-breadth of the warrant. The Court found that the areas sought to be searched are areas where evidence of the crime might be found and the Defendant has not shown otherwise. Moreover, the warrant was temporally limited to information exchanged and gathered from between December 1, 2018 through February 25, 2019, which is a period of time which encompasses the lead up to the alleged crime and the aftermath of such actions. Accordingly the Defendant's motion to suppress physical evidence is denied in all respects.
D. MOTION TO STRIKE IDENTIFICATION NOTICES
The motion to strike is denied. Said notices are in conformity with the statutory requirements of CPL 710.30 in that they set forth the date, manner, location of the identification procedures employed (People v Sumter, 68 A.D.3d 1701 [4th Dept. 2009]) and were served in the proper time frame (CPL 710.30). Finally, because the Defendant has filed a suppression motion based upon the notices that were served, he has waived his right to be heard on the sufficiency of the notices (People v Kirkland, 89 N.Y.2d 903 [1996]).
E. MOTION TO SUPPRESS IDENTIFICATION TESTIMONY CPL ARTICLE 710
Regarding the CPL 710.30 notice that describes the victim, on his own, finding a single picture of the Defendant and bringing it to the police, the Court finds that this was not an identification procedure within the meaning of CPL 710.30 and that notice was gratuitously made to the Defendant (People v Tas, 51 N.Y.2d 915 [1978]). The subsequent viewing of that photograph by the victim during the grand jury proceeding was a confirmatory viewing of the photograph that he had provided the police in the first place (People v Marte, 12 N.Y.3d 583 [2009]). The challenge to that 710.30 noticed identification is denied.
This motion is granted to the extent that a hearing shall be held to consider whether or not the two noticed photographic array identifications were unduly suggestive (UnitedStates v Wade, 388 U.S. 218 [1967]). Specifically, the court shall determine whether the. identifications were so improperly suggestive as to taint any in-court identification. In the event the identifications are found to be unduly suggestive, the court shall then go on to consider whether the People have proven by clear and convincing evidence that an independent source exists for such witness' proposed in-court identification (People v Adelman, 36 A.D.3d 926 [2nd Dept. 2007]). The motion is also granted to the extent that a Rodriguez hearing will be held to gauge whether or not the police officer who made an identification of the Defendant during the grand jury proceedings had sufficient knowledge of the Defendant to render him impervious to suggestion (People v Rodriguez, 79 N.Y.2d 445 [1992]). There is insufficient information in the exchange that occurred during the officer's grand jury testimony for the Court to make a determination about how he knows that the person depicted in the photograph is the Defendant.
F. MOTION TO SUPPRESS STATEMENTS
The Court grants the Defendant's motion to the extent that a Huntley hearing shall be held prior to trial to determine whether any statements allegedly made by the Defendant, which have been noticed by the People pursuant to CPL 710.30 (1)(a) were involuntarily made by the Defendant within the meaning of CPL 60.45 (see CPL 710.20 (3); CPL 710.60 [3][b]; People v Weaver, 49 N.Y.2d 1012 [1980]), obtained in violation of Defendant's Sixth Amendment right to counsel, and/or obtained in violation of the Defendant's Fourth Amendment rights (see Dunaway v New York, 442 U.S. 200 [1979]).
G. MOTION TO INSPECT, DISMISS AND/OR REDUCE
The court grants the defendant's motion to the limited extent that the court has conducted, with the consent of the People, an in camera inspection of the stenographic transcription of the grand jury proceedings. Upon such review, the court finds no basis upon which to grant defendant's application to dismiss or reduce the indictment.
The grand jury was properly instructed (see People v Calbud, 49 N.Y.2d 389 [1980]; People v Valles, 62 N.Y.2d 36 [1984]; People v Burch, 108 A.D.3d 679 [2nd Dept 2013]). The evidence presented, if accepted as true, is legally sufficient to establish every element of each offense charged (CPL 210.30[2]). "Courts assessing the sufficiency of the evidence before a grand jury must evaluate whether the evidence, viewed most favorably to the People, if unexplained and uncontradicted--and deferring all questions as to the weight or quality of the evidence-'-would warrant conviction" (People v Mills, 1 N.Y.3d 269, 274-275 [2002]). Legally sufficient evidence'means competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof (CPL 70.10[1];see People v Flowers, 138 A.D.3d 1138, 1139 [2nd Dept 2016]). "In the context of a Grand Jury proceeding, legal sufficiency means prima facie proof of the crimes charged, not proof beyond a reasonable doubt" (People v Jessup, 90 A.D.3d 782, 783 [2nd Dept 2011]). "The reviewing court's inquiry is limited to whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crimes, and whether the Grand Jury could rationally have drawn the guilty inference. That other, innocent inferences could possibly be drawn from those facts is irrelevant to the sufficiency inquiry as long as the Grand Jury could rationally have drawn the guilty inference" (People v Bello, 92 N.Y.2d 523, 526 [1998]).
Additionally, the Court finds that the Defendant has not met his high burden of demonstrating that the integrity of the grand jury proceedings was impaired by any error, let alone one that would render the proceedings defective and prejudicial to the Defendant (People v Darby, 75 N.Y.2d 449 [1990], People v Thompson, 22 N.Y.3d 687 [2014]), nor does the Court find that there was any such error. Among other things the minutes reveal a quorum of the grand jurors was present during the presentation of evidence, that the Assistant District Attorney presented the evidence fairly and properly instructed the grand jury on the law and only permitted those grand jurors who heard all the evidence to vote the matter. Accordingly, this prong of the defendant's motion is also denied.
Based upon the in camera review, since this court does not find release of the grand jury minutes or any portion thereof necessary to assist it in making any determinations and as the defendant has not set forth a compelling or particularized need for the production of the grand jury minutes, defendant's application for a copy of the grand jury minutes is denied (People v Jang, 17 A.D.3d 693 [2d Dept 2005]; CPL 190.25 [4] [a]).
I. MOTION FOR SANDOVAL AND VENTIMIGLIA HEARINGS
The Defendant has moved for a pre-trial hearing to permit the trial court to determine the extent, if at all, to which the People may inquire into the Defendant's prior criminal convictions, prior uncharged criminal act, and vicious or immoral conduct (see, People v Sandoval, 34 N.Y.2d 371 [1974]). The People have consented to, and it is now ordered that immediately prior to trial the court will conduct a Sandoval hearing.
At the hearing, the People are required to notify the Defendant of all specific instances of his criminal, prior uncharged criminal acts and vicious or immoral conduct of which they have knowledge and which they intend to use in an attempt to impeach the Defendant's credibility if he elects to testify at trial (CPL 240.43). The Defendant shall then bear the burden of identifying any instances of his prior misconduct that he submits the People should not be permitted to use to impeach his credibility. The Defendant shall be required to identify the basis of his belief that each event or incident may be unduly prejudicial to him should he decide testify as a witness on his own behalf and thereby prevent him from exercising this right (see, People v Matthews, 68 N.Y.2d 118 [1986]; People v Malphurs, 111 A.D.2d 266 [2d Dept 1985]).
The Defendant's application for a Ventimiglia healing is denied as premature, because the People have not indicated an intention to use any evidence of prior bad act or uncharged crimes of the Defendant in its case in chief (see, People v Molineaux, 168 N.Y.2d 264 [1901]; People v Ventimiglia, 52 N.Y.2d 350 [1981]). The People have stated that if they do intend to use any Molineaux evidence that they will inform the defense and the court of their intention and at that point the Defendant may renew this aspect of his motion.
The foregoing constitutes the opinion, decision and order of this Court.