Opinion
Index No. 21-00535-01
01-24-2022
THE PEOPLE OF THE STATE OF NEW YORK v. CHARLES COLES, Defendant.
Sharleen A. Bailon Assistant District Attorney Westchester County Office of the District Attorney Richard J. Daronco Courthouse April A. McKenzie, Esq. Attorney for Defendant Office of Clare J Degnan, Esq. Legal Aid Society
Unpublished Opinion
Sharleen A. Bailon Assistant District Attorney Westchester County Office of the District Attorney Richard J. Daronco Courthouse
April A. McKenzie, Esq. Attorney for Defendant Office of Clare J Degnan, Esq. Legal Aid Society
DECISION AND ORDER
Robert A. Neary, Judge
The defendant, Charles Coles, has been charged with the crimes of Driving While Intoxicated as a felony (Vehicle and Traffic Law §1192.3); Refusal to Take a Breath Test (Vehicle and Traffic Law § 1128[A]), Failed to Use Designated Lane (Vehicle and Traffic Law §1128[C]) and Consumption of Alcohol in Motor Vehicle (Vehicle and Traffic Law §1127[1]). The defendant has made an omnibus motion which consists of a Notice of Motion and an Affirmation and Memorandum of Law in support thereof. In response, the People have filed an Affirmation in Opposition together with a Memorandum of Law. The Court received the defendant's motion on December 7,2021. The Court received the People's Affirmation in Opposition on December 20, 2021 with Grand Jury minutes and an Affirmation of Service. While the People timely answered the defendant's motion, the Court mislaid the papers and did not issue a decision on January 21, 2022. Under the mistaken belief that the People did not provide an answer, the Court adjourned the matter to February 18, 2022 charging the time to the People. This was an error on the Court's part. The time will not be charged to the People as they did answer in a timely manner. Having read all of the submitted papers and reviewed the court file, this Court makes the following determination.
MOTION TO STRIKE NOTICES PURSUANT TO CPL ARTICLE 710
This motion is denied. Said notice is in conformity with the statutory requirements of CPL§710.30.
MOTIONTO SUPPRESS STATEMENTS PURSUANT TO CPL ARTICLE 710 and MOTION TO SUPPRESS EVIDENCE OF AN ALLEGED REFUSAL TO SUBMIT TO A CHEMICAL TEST
This branch of the defendant's motion 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 N.Y.2d 1012, 429 N.Y.S.2d 399, 406 N.E.2d 1335), 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, 99 S.Ct. 2248, 60 L.Ed.2d 824).
The hearing will also address the admissibility of any refusal to submit to a chemical test on the defendant's part.
MOTION TO SUPPRESS FIELD SOBRIETY TEST RESULTS and MOTION TO SUPPRESS ALLEGED EVIDENCE OF CUP OF LIQUID FOUND INCIDENT TO ARREST
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 (see Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081) and whether any evidence was obtained in violation of the defendant's Sixth Amendment right to counsel and/or obtained in violation of the defendant's Fourth Amendment rights. [See Dunaway v. New York, 42 U.S. 200, 99 S.Ct. 2248, 60L.E.2d 824], MOTION TO DISMISS PURSUANT TO CPL ARTICLE 210 and MOTION TO INSPECT AND DISMISS OR REDUCE PURSUANT TO CPL ARTICLE 210
The defendant's motion to inspect the Grand Jury minutes is granted. Upon an in camera inspection of the Grand Jury minutes by Court, the motion to dismiss the indictment or reduce a charged offense in the indictment is denied.
The Court has reviewed the minutes of the proceeding before the Grand Jury. The Grand Jury was properly instructed (see People v. Calbud, 49 N.Y.2d 389, 426 N.Y.S.2d 389, 402 N.E.2d 1140 and People v. Valles, 62 N.Y.2d 36,476 N.Y.S.2d 50,464 N.E.2d 418) and the evidence presented, if accepted as true would be legally sufficient to establish every element of the offenses charged. [See CPL §210.30(2)]. In addition, the minutes reveal 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, and that it was instructed that only those grand jurors who had heard all the evidence could participate in voting on the matter.
The Court does not find that the release of the Grand Jury minutes or certain portions thereof to the parties was necessary to assist the Court in making this determination.
MOTION FOR VENTIMIGLIA HEARING, MOTION FOR SANDOVAL HEARING and MOTION FOR DISCLOSURE OF UNCHARGED BAD ACTS PURSUANT TO CPL 240.43
Immediately prior to commencement of jury selection, the prosecutor shall, upon request of the defendant, notify the defendant of any prior criminal act which the People seek to use in the cross-examination of the defendant as well as all specific instances of the defendant's prior uncharged criminal, vicious or immoral conduct of which the prosecutor has knowledge and which the prosecutor intends to use at trial for the purposes of impeaching the credibility of the defendant. Thereafter, upon the defendant's request, the trial court shall conduct a Sandoval and/or Ventimiglia hearing prior to the commencement of trial. [See People v. Sandoval, 34 N.Y.2d 371 (1974); People v. Ventimiglia, 52 N.Y.2d 350 (1981); People v. Molineux, 168 NY 264 (1901)].
MOTION FOR EXCULPATORY EVIDENCE
The People recognize their continuing duty to disclose exculpatory material at the earliest possible date. [See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. .1194, 10 L.Ed.2d 215 and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763,31 L.Ed.2d 104], If the People are or become aware of any material which is arguable exculpatory, but they are not willing to consent to its disclosure, they are directed to disclose such material to the Court for its in camera inspection and determination as to whether such will be disclosed to the defendant.
MOTION TO STRIKE ALIBI DEMAND
This motion 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 A.D.2d 854, 587 N.Y.S.2d 358, appeal denied 80 N.Y.2d 974, 591 N.Y.S.2d 143, 605 N.E.2d 879; People v. Cruz, 176 A.D.2d 751, 574 N.Y.S.2d 1006, appeal denied 79 N.Y.2d 855, 580 N.Y.S.2d 727, 588 N.E.2d 762; People v. Gill, 164 A.D.2d 867, 599 N.Y.S.2d 376, appeal denied 76 N.Y.2d 893, 561 N.Y.S.2d 555, 562 N.E.2d 880; People v. Peterson, 96 A.D.2d 871, 578 N.Y.S.2d 358) and provides equality in the required disclosure (see People v. Peterson, 90 A.D.2d 871, 578 N.Y.S.2d 358; see generally Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82).
MOTION FOR TIME TO FILE FUTURE MOTIONS
Upon a proper showing, the Court will entertain appropriate additional motions 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 in this motion. [See CPL §255.20(3)].
This constitutes the opinion, decision and order of this Court.