Opinion
Indictment No.: 16-01098-01
02-28-2017
THE PEOPLE OF THE STATE OF NEW YORK v. JEFFREY STEPHENS and MYOSHIE HATTON, Defendant.
HON. ANTHONY A. SCARPINO, JR. District Attorney, Westchester County 111 Dr. Martin Luther King, Jr. Boulevard White Plains, New York 10601 BY: Susan L. Pollet Assistant District Attorney CLARE J. DEGNAN, ESQ. The Legal Aid Society of Westchester County 150 Grand Street, Suite 100 White Plains, New York 10601 BY: Erica Danielsen, Esq. Associate Counsel
This decision is amended solely to the extent that the court grants a Mapp hearing prior to trial to determine the propriety of any search resulting in the seizure of property from the defendant's person and/or his automobile (see Mapp v Ohio, 367 US 643[1961] as set forth in Point IV.
Defendant, JEFFREY STEPHENS, having been indicted on or about November 3, 2016, with aiding, abetting and acting in concert with his co-defendant the crimes of Criminal Possession of a Controlled Substance in the Fifth Degree (Penal Law § 220.06 [5]); Criminal Possession of a Firearm (Penal Law § 265.01-b [1]); Criminal Use of Drug Paraphernalia in the Second Degree (Penal Law § 220.50 [3]); Unlawful Possession of Marihuana (Penal Law § 221.05 [1]); and charged individually with the crime of Criminal Possession of a Weapon in the Third Degree (Penal Law § 265.02 [1]). The defendant has filed an omnibus motion consisting of a Notice of Motion and an Affirmation in Support thereof. In response thereto, 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: I.
MOTION for DISCOVERY, DISCLOSURE and INSPECTION
CPL ARTICLE 240
The parties have entered into a stipulation by way of a Consent Discovery Order consenting to the enumerated discovery in this case. Defendant's motion for discovery is granted to the extent provided for in Criminal Procedure Law Article 240. If there any further items discoverable pursuant to Criminal Procedure Law Article 240 which have not been provided to defendant pursuant to the Consent Discovery Order, they are to be provided forthwith.
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 US 83 [1963]; Giglio v United States, 405 US 150 [1972]). The People have also acknowledged their duty to comply with People v Rosario, (9 NY2d 286 [1961]). 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 such must be disclosed to the defendant.
Defendant's motion for a further Bill of Particulars is denied. The Bill of Particulars set forth in the Consent Discovery Order provided to the defendant has adequately informed the defendant of the substance of her alleged conduct and in all respects complies with CPL 200.95.
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 NY2d 423 [1996]; Matter of Brown v Grosso, 285 AD2d 642 [2d Dept 2001]; Matter of Brown v Appelman, 241 AD2d 279 [2d Dept 1998]; Matter of Catterson v Jones, 229 AD2d 435 [2d Dept 1996]; Matter of Catterson v Rohl, 202 AD2d 420 [2d Dept 1994]). II.
MOTION to INSPECT, DISMISS and/or REDUCE
CPL ARTICLE 190
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. Defendant's request to dismiss the indictment in the interests of justice is denied.
The indictment contains a plain and concise factual statement in each count which, without allegations of an evidentiary nature, asserts facts supporting every element of the offense charged and the defendant's commission thereof with sufficient precision as to clearly apprise the defendant of the conduct which is the subject of the indictment (CPL 200.50). The indictment charges each and every element of the crimes, and alleges that the defendant committed the acts which constitute the crimes at a specified place during a specified time period and, therefore, is sufficient on its face (People v Cohen, 52 NY2d 584 [1981]; People v Iannone, 45 NY2d 589 [1978]).
The grand jury was properly instructed (see People v Calbud, 49 NY2d 389 [1980]; People v Valles, 62 NY2d 36 [1984]; People v Burch, 108 AD3d 679 [2d 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 NY3d 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 AD3d 1138, 1139 [2d 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 AD3d 782, 783 [2d 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 NY2d 523, 526 [1998]).
Additionally, the minutes reveal a quorum of the grand jurors was present during the presentation of evidence, that the Assistant District Attorney properly instructed the grand jury on the law, and only permitted those grand jurors who heard all the evidence to vote the matter.
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 AD3d 693 [2d Dept 2005]; CPL 190.25[4][a]).
As to defendant's argument that the indictment should be dismissed since the defendant never had physical possession of the contraband or weapon and that the People failed to prove constructive possession, it is without merit and is denied. To support a charge that a defendant was in constructive possession of tangible property, the People must show that the defendant exercised "dominion or control" over the property by a sufficient level of control over the area in which the contraband is found or over the person from whom the contraband is seized (see Penal Law § 10.00[8]; People v Francis, 79 NY2d 925 [1992]; People v Tirado, 47 AD2d 193 [1975]). Viewing the evidence in the light most favorable to the People, defendant's personal effects found in the apartment where the search warrant was executed was sufficient to demonstrate that he occupied the apartment, and was in constructive possession of the drug paraphernalia and weapon recovered by the police (see People v Robertson, 48 NY2d 993 [1980]). III.
MOTION for SANDOVAL and VENTIMIGLIA HEARINGS
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, vicious or immoral conduct. The People have consented to a Sandoval hearing. Accordingly, it is ordered that immediately prior to trial a hearing shall be conducted pursuant to People v Sandoval (34 NY2d 371[1974]). At said hearing, the People shall be required to notify the defendant of all specific instances of his criminal, prior uncharged criminal, 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).
At the hearing, the defendant shall 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 his ability to testify as a witness on his own behalf (see People v Matthews, 68 NY2d 118 [1986]; People v Malphurs, 111 AD2d 266 [2d Dept 1985]).
Defendant's application for a hearing, pursuant to People v Ventimiglia (52 NY2d 350 [1981]) is denied since the People have not indicated an intention to use evidence of any prior bad act or uncharged crimes of the defendant during its case in chief (see People v Molineaux, 168 NY2d 264 [1901]). If the People move to introduce such evidence, the defendant may renew this aspect of his motion. IV.
MOTION to SUPPRESS PHYSICAL EVIDENCE
Defendant's motion to suppress evidence on the ground of illegal arrest is not supported with sworn allegations of fact and his request for a hearing based on conclusory statements of illegal seizure and arrest are summarily denied (People v France, 12 NY3d 790 [2009]; People v Jones, 95 NY2d 721 [2001]; People v Anderson, 253 AD2d 636 [1st Dept 1998]; CPL 710.60[3][b]; see also People v Scully, 14 NY3d 861 [2010]).
With respect to the property seized from defendant's home pursuant to a search warrant, the motion to suppress is denied. The Court has reviewed the affidavit in support of the search warrant and finds that it did provide the signing magistrate with probable cause to believe that evidence could be located at the location described in the warrant. The People are directed to disclose the warrant and the supporting affidavit subject to redactions for the court's review no later than Friday February 17, 2017 or to move for a protective order. Should the People move for a protective order, an in camera inquiry will be conducted prior to trial pursuant to People v Seychel, 136 Misc2d 310 [Sup. Ct. NY Co. 1987] as reaffirmed by the Court of Appeals in People v Castillo, 80 NY2d 578 [1992]).
Notwithstanding, this branch of the defendant's motion is granted solely to the extent of conducting a Mapp hearing prior to trial to determine the propriety of any search resulting in the seizure of property from his person and/or his automobile (see Mapp v Ohio, 367 US 643[1961]. The hearing will also address whether any evidence was obtained in violation of the defendant's Fourth Amendment rights (see Dunaway v New York, 442 US 200 [1979]). V.
MOTION to STRIKE ALIBI NOTICE
Defendant's motion to strike the alibi notice is denied. Contrary to the defendant's contentions, it is well-settled that CPL 250.00 is indeed in compliance with the constitutional requirements (see People v Dawson, 185 AD2d 854 [2d Dept 1992]; People v Cruz, 176 AD2d 751 [2d Dept 1991]; People v Gill, 164 AD2d 867 [2d Dept 1990]) and provides equality in the required disclosure (People v Peterson, 96 AD2d 871 [2d Dept 1983]; see generally Wardius v Oregon, 412 US 470 [1973]). VI.
MOTION for PRODUCTION of INFORMANT
& for DISCLOSURE of DEALS and AGREEMENTS
To the extent defendant moves for the production of an informant it is denied as the defendant has failed to make the requisite showing that there is an informant involved in the case and whether the guilt or innocence of defendant hinges solely upon the testimony of an informant (see People v Goggins, 34 NY2d 163, 168-169 [1974]). Even if an informant was involved in the initial targeting of defendant, this falls short of the requisite showing that the informant has information relevant to defendant's guilt or innocence (People v Chavis, 113 AD2d 896, 897 [2d Dept 1985]). Disclosure of an informant's identity is not necessary even where an informant introduces the defendant to an undercover officer (People v Vega, 23 AD3d 504, 505 [2d Dept 2005]).
The People recognize their continuing duty to disclose the terms of any deal or agreement made between the People and any prosecution witness at the earliest possible date (see People v Steadman, 82 NY2d 1 [1993]; Giglio v United States, 405 US 150 [1972]; Brady v Maryland, 373 US 83 [1963]; People v Wooley, 200 AD2d 644 [2d Dept 1994]). VII.
MOTION to STRIKE STATEMENT NOTICE
The motion to strike is denied. Said notices are in conformity with the statutory requirements of CPL 710.30. VIII.
MOTION to SUPPRESS NOTICED STATEMENTS
This branch of the defendant's motion seeking to suppress statements on the grounds that they were unconstitutionally obtained is granted 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 NY2d 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 US 200 [1979]).
The foregoing constitutes the opinion, decision and amended order of this court. Dated: White Plains, New York
February 28, 2017
/s/_________
Honorable Anne E. Minihan, J.C.C.
HON. ANTHONY A. SCARPINO, JR.
District Attorney, Westchester County
111 Dr. Martin Luther King, Jr. Boulevard
White Plains, New York 10601
BY: Susan L. Pollet
Assistant District Attorney
CLARE J. DEGNAN, ESQ.
The Legal Aid Society of Westchester County
150 Grand Street, Suite 100
White Plains, New York 10601
BY: Erica Danielsen, Esq.
Associate Counsel