Opinion
Indictment No. 20-0332
01-25-2022
THE PEOPLE OF THE STATE OF NEW YORK v. JOSE VENANCIO CLEMENTE, Defendant.
HON. MIRIAM E. ROCAH, MICHELLE A. CALVI, ESQ., RICHARD L. FERRANTE, ESQ. Attorney for the Defendant
Unpublished Opinion
HON. MIRIAM E. ROCAH, MICHELLE A. CALVI, ESQ., RICHARD L. FERRANTE, ESQ. Attorney for the Defendant
DECISION & ORDER
Honorable George E. Fufidio, Judge.
Defendant, JOSE VENANCIO CLEMENTE, having been indicted on or about September 23, 2021, on two counts of driving while intoxicated as a felony (Vehicle and Traffic Law § 1192(2]); one count of driving while intoxicated as a felony (Vehicle and Traffic Law § 1192(3]); two counts of aggravated unlicensed operation of a motor vehicle in the first degree (Vehicle and Traffic Law § 511-3[a][i]) and seven traffic infractions for violating Vehicle and Traffic Laws sections 1163[d]; 1110[a]; 1160[d]; 1131; 1129[a]; 375(3] and 365(31] 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 this Court disposes of this motion as follows:
A. MOTION TO INSPECT AND THE GRAND JURY MINUTES AND TO DISMISS AND/OR REDUCE THE INDICTMENT
Defendant moves pursuant to CPL §§210.20(1)(b) and (c) to dismiss the indictment, or counts thereof, on the grounds that the evidence before the Grand Jury was legally insufficient and that the Grand Jury proceeding was defective within the meaning of CPL §210.35. The Court has reviewed the minutes of the proceedings before the Grand Jury.
Pursuant to CPL §190.65(1), an indictment must be supported by legally sufficient evidence which establishes that the. defendant committed the offenses charged. Legally sufficient evidence is competent evidence which, if accepted as true, would establish each and every element of the offense charged and the defendant's commission thereof (CPL §70.10(1]); People v Jennings, 69 N.Y.2d 103 [1986]). "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 Bello, 92 N.Y.2d 523 (1998); People v Ackies, 79 A.D.3d 1050 (2nd Dept 2010). In rendering a determination, "(t]he reviewing court's inquiry is limited to whether the facts, if proven, and the inferences that logically flow from those facts supply proof of each element of the charged crimes and whether the grand jury could rationally have drawn the inference of guilt." Bello, supra, quoting People v Boampong, 57 A.D.3d 794 (2nd Dept 2008- internal quotations omitted). A review of the minutes reveals that the evidence presented, if accepted as true, would be legally sufficient to establish every element of the offenses charged (see CPL §210.30(2]).
With respect to Defendant's claim that the Grand Jury proceeding was defective within the meaning of CPL §210.35, a review of the minutes supports a finding that a quorum of the grand jurors was present during the presentation of evidence and at the time the district attorney instructed the Grand Jury on the law, that the grand jurors who voted to indict heard all the "essential and critical evidence" (see People v Collier, 72 N.Y.2d 298 [1988]; People v Julius, 300 A.D.2d 167 [1st Dept 2002], Iv den 99 N.Y.2d 655 [2003]). The Grand Jury was properly instructed (see People v Calbud, 49 N.Y.2d 389 [1980] and People v. Valles, 62 N.Y.2d 36 [1984]).
In making this determination, the Court does not find that release of such portions of the Grand Jury minutes as have not already been disclosed pursuant to CPL Article 245 to the parties was necessary to assist the Court.
B. 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]).
C. MOTION TO SUPPRESS PHYSICAL EVIDENCE
Defendant moves to suppress any evidence obtained as a result of the arrest, search and seizure of evidence including any chemical test that was performed on him on March 9, 2020. 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 evidence (see Mapp v Ohio, 361 U.S. 643 [ 1961]) including the results of the chemical test to determine, inter alia, whether the defendant expressly consented to the chemical test (see eg, People v Atkins, 85 N.Y.2d 1007, 1008 [1995] and/or that it was administered in accord with VTL §1194 (2)(a) (see People v Atkins, 85 N.Y.2d 1007, 1008 [1995]). Notably, the two hour limit set forth in VTL §1194(2)(a)(1) has no application where a defendant expressly and voluntarily consents to a test as opposed to where a defendant is deemed to have consented (People v Elysee, 12 N.Y.3d 100, 105 [2009]). In the event the court finds that the defendant was deemed to have consented, the court will then consider whether the two hour statutory criteria as set forth in VTL§ 1194(2)(a)(1) was followed. The hearing will also address whether any evidence was obtained in violation of the defendant's Fourth Amendment rights, including evidence seized from the defendant's car and observations made of him (see Dunaway v New York, 442 U.S. 200 [1979]).
Any person who operates a motor vehicle in this state shall be deemed to have given consent to a chemical test of. . . breath, blood, urine, or saliva, for the purpose of determining the alcoholic and/or drug content of the blood (People v Elysee, 12NY3d 100, 105 [2009]).
Additionally, the Court will determine whether or not the Defendant properly refused to submit to a chemical test when he was arrested on May 22, 2020 for driving while intoxicated.
D. MOTION FOR SANDOVAL/VENTIMIGLIA/MOLINEUX HEARING
Granted, solely to the extent that Sandoval/Ventimiglia/Molineux hearings, as the case may be, shall be held immediately prior to trial, as follows:
I. Pursuant to CPL §245.20, the People must notify the Defendant, not less than fifteen days prior to the first scheduled date for trial, of all specific instances of Defendant's uncharged misconduct and criminal acts of which the People have knowledge and which the People intend to use at trial for purposes of impeaching the credibility of the Defendant, or as substantive proof of any material issue in the case, designating, as the case may be for each act or acts, the intended use (impeachment or substantive proof) for which the act or acts will be offered; and
II. Defendant, at the ordered hearing, must then sustain his burden of informing the Court of the prior misconduct which might unfairly affect him as a witness in his own behalf (see, People v. Malphurs, 111 A.D.2d 266 [2nd Dept. 1985]).
E. MOTION RESERVING THE RIGHT TO FILE ADDITIONAL MOTIONS
Defendant's motion reserving the right to file additional motions is denied. Should the Defendant file any other motions that were not raised in his Omnibus motion, then they will need to be in compliance with CPL 255.20(3).
F. DISCOVERY ORDER PURSUANT TO ADMINISTRATIVE ORDER 393/19
Pursuant to Administrative Order 393/19, it is:
ORDERED, that the District Attorney and the Assistant District Attorney responsible for the case, are required to make timely disclosure of information favorable to the defense as required by Brady v Maryland, 373 U.S. 83 [1963]; Giglio v United States, 405 U.S. 150 [1972]; People v Geaslen, 54 N.Y.2d 510 [1981]; and their progeny under the United States and New York State Constitutions and by Rule 3.8(b). of the New York State Rules of Professional Conduct; and it is further
ORDERED, that the District Attorney and the Assistant District Attorney responsible for the case or, if the matter is not being prosecuted by the District Attorney, the prosecuting agency and its assigned representatives, have a duty to learn of such favorable information that is known to others acting on the government's behalf in the case, including the police, and are therefore expected to confer with investigative and prosecutorial personnel who acted in the case and to review all files which are directly related to the prosecution or investigation of this case. For purposes of this Order, favorable information can include but is not limited to:
a) Information that impeaches the credibility of a testifying prosecution witness, including
(i) benefits, promises, or inducements, express or tacit, made to a witness by a law enforcement official or law enforcement victim services agency in connection with giving testimony or cooperating in the case;
(ii) a witness's prior inconsistent statement, written or oral; (iii) a witness's prior convictions and uncharged criminal conduct;
(iv) information that tends to sow that a witness has a motive to lie to inculpate the defendant, or a bias against the defendant or in favor of the complainant or the prosecution; and
(v) information that tends to show impairment of a witness's ability to perceive, recall, or recount relevant events, including impairment resulting from mental or physical illness or substance abuse;
b) Information that tends to exculpate, reduce the degree of an offense, or scupport a potential defense to a charged offense;
c) Information that tends to mitigate the degree of the defendant's culpability as to a charged offense, or to mitigate punishment;
d) Information that tends to undermine evidence of the defendant's identity as a perpetrator of a charged crime, such as a non-identification of the defendant by a witness to a charged crime or an identification or other evidence implicating another person in a manner that tends to cast doubt on the defendant's guilt; and
e) Information that could affect in the defendant's favor the ultimate decision on a suppression motion; and it is further
ORDERED, that the District Attorney and the Assistant District Attorney responsible for the case or any other agent prosecuting the case is hereby advised of his/her duty to disclose favorable information whether or not such information is recorded in tangible form and irrespective of whether the prosecutor credits the information; and it is further
ORDERED, that the District Attorney and the Assistant District Attorney responsible for the case or any other agent responsible for the prosecution of the case is directed that favorable information must be timely disclosed in accordance with the United States and New York State, constitutional standards, as well as CPL Article 245. Disclosures are presumptively "timely" if they are completed no later than 30 days before commencement of trial in a felony case and 15 days before commencement of trial in a misdemeanor case. Records of a judgment of conviction or a pending criminal action ordinarily are discoverable within the time frame provided in CPL Article 245. Disclosures that pertain to a suppression hearing are presumptively "timely" if they are made no later than 15 days before the scheduled hearing date; and it is further
ORDERED, that the District Attorney and the Assistant District Attorney responsible for the case or any other agent responsible for the prosecution of the case is hereby reminded and informed that his/her obligation to disclose is a continuing one; and it further
ORDERED, notwithstanding the foregoing, that a prosecutor may apply for a protective order, which may be issued for good cause, and CPL Article 245 shall be deemed to apply, with respect to disclosures required under this Order. Moreover, the prosecutor may request a ruling from the court on the need for disclosure. Only willful and deliberate conduct will constitute a violation of this Order or be eligible to result in personal sanctions against the prosecutor; and it is further
ORDERED, that counsel for the defendant is required to: a) confer with the defendant about his/her case and is required to keep the defendant informed about all significant developments in this case; and b) timely communicate any and all plea offers to the defendant and to provide him/her with reasonable advice about the advantages and disadvantages of any such plea offer including the potential sentencing ranges that apply in the case; c) where applicable, insure the defendant receives competent advise concerning immigration consequences as required under Padilla v. Kentucky, 559 U.S. 356 [2010]; d) perform a reasonable investigation of the facts and the law pertinent to the case (including, as applicable, visiting the scene, interviewing witnesses, subpoenaing pertinent materials, consulting experts, inspecting exhibits, reviewing all discovery materials obtained from the prosecution, researching legal issues, etc.) or, as appropriate, making a reasonable professional judgment not to investigate a particular matter; e) comply with the requirements of the New York State Rules of Professional Conduct regarding conflicts of interest, and when appropriate, timely notify the court of a possible conflict so that an inquiry may be undertaken or a ruling made; f) possess or acquire a reasonable knowledge and familiarity with criminal procedural and evidentiary law to ensure constitutionally effective representation in the case; and g) in accordance with statute, provide notices as specified in CPE sections 250.10, 250.20 and 250.30 (e.g., a demand, intent to introduce the evidence, etc.) 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.
The foregoing constitutes the opinion, decision and order of this Court.