Opinion
Ind 18-0810-02
11-08-2018
THE PEOPLE OF THE STATE OF NEW YORK v. JASON GARCIA, Defendant
HON. ANTHONY A. SCARPINO, Jr. District Attorney Thomas S. Kajubi, Esq. Attorney for defendant Garcia
Unpublished Opinion
HON. ANTHONY A. SCARPINO, Jr. District Attorney
Thomas S. Kajubi, Esq. Attorney for defendant Garcia
DECISION & ORDER
ANNE E. MINIHAN, JUDGE.
Defendant, by Westchester County Indictment No. 18-0810-02, is charged with Attempted Murder in the Second Degree (Penal Law § 110.00/125.25); Assault in the First Degree (Penal Law § 120.10[l])(two counts); and Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03)(two counts).
Defendant has filed an omnibus motion consisting of a Notice of Motion, an Affirmation in Support, and a Memorandum of Law. 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:
A.
MOTION to INSPECT and to 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.
The defendant, who bears the burden of refuting with substantial evidence the presumption of regularity which attaches to official court proceedings (People v Pichardo, 168 A.D.2d 577 [2d Dept 1990]), has offered no sworn factual allegations in support of his argument that the grand jury proceedings were defective. The minutes reveal a quorum of the grand jurors was present during the presentation of evidence, and 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 (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 [2d Dept 2013]).
The evidence presented to the grand jury, 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. \0[l]; see People v Flowers, 138 A.D.3d 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 A.D.3d 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 N.Y.2d 523, 526 [1998]).
While the defendant moves to dismiss the indictment on the ground of illegal arrest, he offers no sworn allegations of fact in support of the conclusory statement of an illegal arrest and thus, 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, 14 N.Y.3d 861 [2010]). In any event, a motion to dismiss an indictment based upon an illegal arrest is not supported by the law as proper relief pursuant to CPL 210.20 as grounds for dismissal of an indictment are purely statutory (CPL 210.20, et seq). Notwithstanding, the defendant was arrested after presentation to the Grand Jury and pursuant to an indictment in this case so his motion to dismiss is summarily 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]).
B.
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 U.S. 83 [1963]; Giglio v United States, 405 U.S. 150 [1972]). The People have also acknowledged their duty to comply with People v Rosario (9 N.Y.2d 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.
As to the defendant's demand for scientific related discovery, the People have acknowledged their continuing duty to disclose any written report or document concerning a physical or mental examination or test that the People intend to introduce, or the person who created them, at trial pursuant to CPL 240.20(1)(c).
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 his alleged conduct and in all respects complies with CPL 200.95. The court denies defendant's demand to identify in the Bill of Particulars the name of the undercover officer, to protect that officer's identity and safety during on-going investigations (see People v Hinton, 31 N.Y.2d 71 [1972]; People v White, 170 A.D.2d 629 [2d Dept 1991]).
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 N.Y.2d 1 [1993]; Giglio v United States, 405 U.S. 150 [1972]; Brady v Maryland, 373 U.S. 83 [1963]; People v Wooley, 200 A.D.2d 644 [2d Dept 1994]).
Except to the extent that 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]).
C.
MOTION for SANDOVAL and VENTIMIGLIA HEARINGS
Defendant moves for a pre-trial hearing to permit the trial court to determine the extent, if at all, to which the People may inquire into defendant's prior criminal convictions, prior uncharged criminal, vicious or immoral conduct. On the People's consent, the court directs that a pre-trial hearing be conducted pursuant to People v Sandoval (34 N.Y.2d 371 [1974]). At said hearing, the People shall be required to notify 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 defendant's credibility if he elects to testify at trial (CPL 240.43).
At the hearing, 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. 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 N.Y.2d 118 [1986]; People v Malphurs, 111 A.D.2d 266 [2d Dept 1985]).
To the extent that defendant's application is for a hearing pursuant to People v Ventimiglia (52 N.Y.2d 350 [1981]), it is denied since the People have not indicated an intention to use evidence of any prior bad act or uncharged crimes of defendant during its case in chief (see People v Molineaux, 168 NY 264 [1901]). If the People move to introduce such evidence, defendant may renew this aspect of his motion.
D.
MOTION TO SUPPRESS IDENTIFICATION TESTIMONY CPL710
The People served four (4) identification notices: two notices from an identification made from a video on June 22, 2018 at 1:30pm and at 2:00pm at the Westchester County Courthouse; one identification from a video on July 23, 2018 at 11:00am at the Westchester County Courthouse and one from a photo array on February 6, 2017 at 3:00pm in the City of Mt. Vernon.
Defendant's motion to suppress the identifications is granted to the limited extent of conducting a hearing prior to trial to determine whether the identifying witnesses had a sufficient prior familiarity with the defendant as to render them impervious to police suggestion (People v Rodriguez, 79 N.Y.2d 445 [1992]). In the event the Court finds that there was not a sufficient prior familiarity with the defendant on the part of the witness, the Court will then consider whether or not the noticed identifications were unduly suggestive (United States 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.
E.
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 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]).
F.
MOTION for LEAVE to FILE FUTURE MOTIONS
To the extent that defendant's motion seeks to reserve the right to make future motions, that branch of the motion is denied. Any future motion must be brought by way of order to show cause setting forth reasons as to why said motion was not brought in conformity with CPL 255.20.
G.
MOTION to SUPPRESS PHYSICAL EVIDENCE
While the defendant moves to suppress evidence on the ground of illegal arrest, he offers no sworn allegations of fact in support of the conclusory statement of illegal seizure or arrest and thus, 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, 14 N.Y.3d 861 [2010]).
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 [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 U.S. 200 [1979]).
The foregoing constitutes the opinion, decision and order of this court.