Opinion
Ind. No. 1709/10
11-08-2010
THE PEOPLE OF THE STATE OF NEW YORK v. HARRY DORVILIER and, HARRY'S NURSES REGISTRY, INC. Defendant.
SUPREME COURT - STATE OF NEW YORK CRIMINAL TERM PART K-12 QUEENS COUNTY 125-01 QUEENS BOULEVARD KEW GARDENS, NY 11415 PRESENT: HONORABLE JOSEPH ANTHONY GROSSO ACTING JUSTICE THE PEOPLE OF THE STATE OF NEW YORK
- against - HARRY DORVILIER and HARRY'S NURSES REGISTRY, INC. Defendants. Omnibus Motion Robert Schirtzer, Esq.
For the Motion Hon. Richard A. Brown
District Attorney, Queens
County, by: Rosemary Buecheri, Esq
Opposed
Upon the foregoing papers and in the opinion of the Court herein, the defendant's omnibus motion is granted to the extent indicated in the accompanying memorandum of this date.
/s/_________
JOSEPH ANTHONY GROSSO
Acting J.S.C. Date: November 8, 2010 MEMORANDUM BY: GROSSO, J.
Defendant, in an omnibus motion, seeks the following relief: The application is determined as follows:
The branch of the motion seeking the inspection of the Grand Jury minutes and dismissal or reduction of the indictment is granted to the extent that the court has inspected the minutes of the Grand Jury and finds that sufficient legal evidence was adduced to sustain each and every count of the indictment. Hence, the motion to dismiss or reduce is denied.
The branch of the motion seeking dismissal or reduction of the indictment in that it fails to state the counts of the indictment with sufficient precision, is denied. The Court has examined the wording of the indictment and finds that there are sufficient facts to support every element of the offense charged and clearly acquaint the defendant with the charges. People v. Iannone, 45 N.Y. 2d 589.
The branch of the motion seeking dismissal of the indictment for the failure of the District Attorney to properly instruct the Grand Jury on the applicable law, is denied. The Court has inspected the minutes and finds that the instructions given to the Grand Jury were sufficient and not "so incomplete or misleading" so as to substantially undermine the function of the Grand Jury. People v. Calbud, Inc., 49 N.Y.2d 389.
The branch of the motion seeking the release of the Grand Jury minutes is denied. Grand Jury proceedings are secret and should not be disclosed absent a compelling and particularized need for access. C.P.L. 190(25(4); Matter of District Attorney of Suffolk County, 58 N.Y.2d 436 Ruggerio v. Fahey, 103 A.D.2d 65. The defendant has failed to demonstrate such a compelling need.
The branch of the motion, seeking a Bill of Particulars is granted to the extent that the District Attorney is to comply with defendant's demand as set forth in CPL 200.95.
The branch of the motion seeking Discovery is granted to the extent to the extent indicated in the affirmation in opposition of the District Attorney.
The branch of the motion requesting an extension of time to make further motions is denied as premature with leave to renew upon a proper showing of necessity.
The branch of the motion seeking discovery of the defendant's prior uncharged criminal, vicious or immoral conduct which the prosecutor intends to use at trial is granted to the extent that the People are to give the defendant this information prior to jury selection.
The branch of the motion requesting Sandoval relief, is denied at this time as premature with leave to renew before the trial Court who will consider such application on its merits at the time of trial.
That branch of defendant's motion to dismiss the indictment pursuant to CPL 30.30 is denied. I have reviewed the court file, defense contentions and the People's response. I find that only 112 days of chargeable time have elapsed since the commencement of the criminal action.
That branch of the defendant's motion to dismiss the indictment in the furtherance of justice is denied.
"Clayton" relief is in the nature of "confession and avoidance", that is, assume the facts in the indictment are true, that some factor or factors are present that would make the continued prosecution unjust.
I have inspected the grand jury minutes, the 10 factors for judicial consideration in CPL 210.40, and the assertions of the defense.
I conclude that there is no single fact or factors present to warrant the extraordinary relief of a dismissal of the indictment.
Order entered accordingly.
/s/_________
JOSEPH ANTHONY GROSSO
Acting J.S.C.