Opinion
2004-0338.
Decided August 30, 2004.
MICHAEL C. GREEN, District Attorney, Richard C. Roxin, Esq., Assistant District Attorney, for the People.
Paul J. Vacca, Jr., Esq., Rochester, New York, for the Defendant.
This is a decision on the omnibus motion filed by the defendant who is charged with the crimes of murder in the second degree, a violation of Section 125.25 (2) of the Penal Law of the State of New York, leaving accident result death/injury, reckless driving and speeding, violations of Sections 600 (2) (a) (b), 1212, and 1180 (d) of the Vehicle and Traffic Law of the State of New York, respectively, whereby he seeks various forms of relief. The court has considered each of the issues raised by the defendant and has set forth herein below its determinations respecting such issues.
Motion to Inspect the Grand Jury Minutes and to Dismiss the Indictment
Defendant has moved this court for inspection of the grand jury minutes and for dismissal of the indictment on grounds that the evidence before the grand jury was not legally sufficient to establish the offenses charged therein and that the grand jury proceeding was defective. Additionally, the defendant claims that the indictment must be dismissed because there are jurisdictional and legal impediments to any conviction of the charged offenses.
Upon granting the motion to inspect the grand jury minutes in this case, and after conducting a review of those minutes, the Court finds that release of the minutes, or certain portions thereof, to the defendant is not necessary to assist the court in making its determination of the motion to dismiss ( see CPL § 210.30). Additionally, the Court has made the following findings regarding defendant's motion to dismiss the charges contained in the indictment:
1. Pursuant to Article 190 of the Criminal Procedure Law, there was a sufficient number of grand jurors present who heard the evidence presented on April 6, 2004, April 13, 2004, and April 16, 2004.
2. The legal instructions to the Grand Jury by the Assistant District Attorney were in all respects sufficient and proper.
Turning to defendant's claims that evidence before the grand jury was insufficient, the standard of review to be applied on a motion to dismiss an indictment upon such ground, requires that the court determine whether there was competent evidence, which accepted as true, would establish every element of the crime and the defendant's commission thereof; this means a prima facie case, not proof beyond a reasonable doubt ( People v. Mikuszewski, 73 NY2d 407, 411; People v. Jennings, 69 NY2d 103, 115). Indictments "must be based on competent evidence, meaning evidence not subject to an exclusionary rule, such as the prohibition against hearsay" ( People v. Swamp, 84 NY2d 725, 730; Prince, Richardson on Evidence, § 4-102, at 137 [Farrell 11th ed]). Viewed in the light most favorable to the People ( People v. Warner-Lambert Co., 51 NY2d 295, 299, cert denied 450 US 1031), the evidence before the grand jury respecting each of these charges, if unexplained and uncontradicted, and deferring all questions as to weight or quality of the evidence, must be legally sufficient to support a determination of guilt ( see CPL § 210.20[b]; People v. Mayo, 36 NY2d 1002, 1004); People v. Jennings, 69 NY2d at 115; People v. Mikuszewski, 73 NY2d at 411; People v. Galatro, 84 NY2d 160; People v. Swamp, 84 NY2d at 730; People v. Gordon, 88 NY2d 92). Lastly, it is accepted that "[t]he District Attorney is free to seek an indictment for the highest crime the evidence will support ( People v. Valles, 62 NY2d 36, 39).
In this case, evidence before the grand jury came in the form of testimony from witnesses at the scene who heard the collision, several Rochester Police Department (RPD) officers who responded to the scene, RPD police investigators who interviewed the witnesses and conducted follow-up investigative procedures, RPD evidence technicians who processed and secured the crime scene and/or took possession of other evidence alleged to be connected to the incident, a New York State Trooper — a certified collision reconstruction specialist who collected physical evidence at the scene, and a RPD special accident investigator who reconstructed the accident scene utilizing the data collected by the State Trooper and data downloaded from the Cadillac's air bag module. The People also presented several exhibits consisting of a photograph of the crash scene, a photograph of the 2004 Cadillac, a photograph of a coat seized from the defendant's home, a photograph of the deceased, a certified copy of the Monroe County Medical Examiner's autopsy report, a report from the Monroe County Public Safety Laboratory concerning testing of a brown Bill Blass trench coat and deployed vehicle air bag, a New York State Department of Motor Certified Abstract of Registration Record and a certified copy of the Registration Plate Record showing defendant as the registered owner of the 2004 Cadillac.
No eyewitness testified to actually having observed the collision which involved four vehicles, including a Dodge Neon, stopped at a red light at the intersection of Exchange Boulevard and Ford Street in the City of Rochester, New York, shortly after 2:00 a.m. on October 19, 2003, and a 2004 Cadillac. All of the witnesses who were involved in the crash testified to hearing a loud crash coming from a location behind their vehicles. The evidence showed that the Cadillac struck the rear-end of a Dodge Neon and the collision resulted in the death of Lindsay Kyle, the driver of the Neon. Also presented was evidence which demonstrated that, shortly before the collision, a witness driving on Exchange Boulevard near the Interstate Route 490 overpass observed a Cadillac pass his vehicle on the right going at least double his speed of 30 or 35 miles per hour. This same witness, who was employed as a bouncer at a local bar, identified the 2004 Cadillac which collided with the deceased's vehicle as the same one that he earlier observed. He testified that weeks after the crash, he identified the defendant from a photo array as being at the scene at the time of the crash. He also testified that, at the scene, he engaged in conversation with the defendant whom he described as a black male, approximately 5'9" to 5'11", 160-170 pounds, faded haircut, Pendleton mustache, dressed up for the occasion, including wearing, among other items of clothing, a three-quarter length trench coat. Based upon his observations of the defendant at the scene and his experience (having observed maybe 100 persons whom he believed to be intoxicated), the witness testified that the defendant was intoxicated. He also testified that the defendant watched the paramedics as they provided assistance to the visibly injured victim, but seemed like he didn't have a care in the world and showed no concern about the situation. When the witness asked the defendant where his car was, he pointed in the direction opposite the crash scene and said he was parked over there.
Two witnesses, the driver and passenger of the first car stopped at the red light observed a well-dressed black man wearing a three-quarter length, dark colored trench coat seated behind the steering wheel of the Cadillac immediately after the crash. The evidence showed that the driver of the Cadillac spoke to these two witnesses at the scene, as well as the driver of a Livingston County Area Transportation bus which was stopped behind their vehicle. The driver of the car testified that she went over to the Cadillac, leaned in and told the driver not to move, he may be hurt. According to her testimony, the driver said he was "so sorry, he didn't mean to." The driver of a Livingston County Area Transportation bus testified that the collision rocked his bus back and forth and that when he went over to ask the driver of the Cadillac if he was okay, he did not smell any alcohol at all and did not recall what he was wearing. The passenger of the first car stopped at the red light in the intersection testified that the driver of the Cadillac hugged her and told her that he was sorry and that it was his fault. The deceased's fiancé, a Monroe County Sheriff's deputy, testified that he was in a car stopped at the red light behind a white bus and that the deceased was in a Dodge Neon stopped behind him. Another vehicle hit the back of her car, pushing his into the bus; she did not survive the crash. Police officers were unable to speak with the driver of the Cadillac because he failed to remain at the scene. Department of Motor Vehicle records listed the defendant as the registered owner of the Cadillac. Laboratory testing revealed that a connection existed between fibers taken from a trench coat seized from the defendant's home and those found on the air bag deployed in his vehicle, and that the only occasion on which the air bag had ever deployed was during this particular crash. There was also evidence that the New York State speed limit posted in the vicinity of the crash was 30 miles per hour. The Rochester Police Department's reconstruction of the accident based upon data collected by the New York State Police and from the air bag module in the 2004 Cadillac demonstrated that the estimated speed at which defendant's vehicle was traveling at the time of impact was 65-70 miles per hour and that the brake switch was on approximately two and a half to three seconds prior to impact. The RPD reconstruction specialist testified additionally that the data from the air bag module showed that five seconds before impact, the rate of speed of the Cadillac was 104 miles per hour and that three to four seconds before impact the vehicle was traveling at 106 miles per hour. He also testified that the road was wet on the night the collision took place.
Viewing this evidence in the light most favorable to the People, this court finds it to be sufficiently clear to support defendant's operation of the 2004 Cadillac involved in the collision, as well as the charged violations of the Vehicle and Traffic Law. Contrary to the contention of the defendant, the evidence presented to the grand jury also sufficiently established a prima facie case of death caused by reckless conduct occurring under circumstances evincing a depraved indifference to human life, thereby supporting the count of the indictment which charges murder in the second degree (Penal Law § 125.25), depraved indifference murder.
First, Penal Law § 125.25 (2) provides that "[a] person is guilty of murder in the second degree when, under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby, causes death of another person." The mens rea in this crime is "recklessly," and pursuant to Penal Law § 15.05 (3),
[a] person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk solely by reason of voluntary intoxication also acts recklessly with respect thereto.
Additionally required is a determination whether defendant acted under circumstances evincing a depraved indifference to human life, that is, "an objective assessment of the degree of risk presented by the defendant's reckless conduct" ( see People v. Register, 60 NY2d 270, 277; People v. Chrysler, 85 NY2d 413, 415). This question depends upon "whether the objective circumstances bearing on the nature of defendant's reckless conduct are such that the conduct creates a very substantial risk of death" ( see People v. Roe, 74 NY2d 20, 24-25; People v. Gomez, 65 NY2d 9, 11; People v. Register, 60 NY2d at 276-277). The Court of Appeals stated in People v. Sanchez, 98 NY2d 373, 380,
"As Register instructs, objective circumstances of exceptionally high, unjustified risk of death constitute the primary means by which the Legislature differentiated between the reckless state of mind sufficient to establish the mental culpability of manslaughter and the extreme recklessness of murder under Penal Law § 125.25 (2). * * * Register requires a significantly heightened recklessness distinguishing it from manslaughter in two ways. First, 'in a depraved mind murder the actor's conduct must present a grave risk of death whereas in manslaughter it presents the lesser substantial risk of death.' * * * Then, it also requires proof of circumstances manifesting a depraved indifference to human life, focusing the inquiry, as we have seen, 'upon an objective assessment of the degree of risk' which 'converts the substantial risk present in manslaughter into a very substantial risk.' * * * Thus, Register concludes, extreme recklessness — the conscious disregard of circumstances revealing the exceptional risk of death from the defendant's conduct — was the predominant means chosen by the Legislature to distinguish murder under Penal Law § 125.25 (2) from manslaughter and make it equivalent in grade to intentional murder."
( see also People v. Hafeez, 100 NY2d 253, 259 — heightened recklessness required for depraved indifference murder).
Quoting its decisions in People v. Russell, 91 NY2d 280, 287 and People v. Fenner, 61 NY2d 971, the Court of Appeals in People v. Gonzalez, 1 NY3d 464, 468-469, iterated that to rise to the level of depraved indifference, the reckless conduct at issue must be "so wanton, so deficient in a moral sense of concern, so devoid of regard of the life or lives of others, and so blameworthy as to warrant the same criminal liability as the law imposes upon a person who intentionally causes the death of another," and, so doing, cited several cases illustrating when depraved indifference murder is exemplified by a defendant who is unconcerned with the consequences: People v. Jernatowski, 238 NY 188 (defendant fires into a crowd); People v. Gomez, 65 NY2d 9 (defendant drives an automobile down a crowded sidewalk at high speed); People v. Roe, 74 NY2d 20 (defendant shoots a partially loaded gun at a person's chest during a game of Russian roulette); People v. Kibbe, 35 NY2d 407 (defendant abandons a helplessly intoxicated person on a snowy highway at night); People v. Poplis, 30 NY2d 85 (defendant repeatedly beats a young child over a period of several days).
In Gomez, the Court held that the defendant, under circumstances evincing a depraved difference to human life, recklessly engaged in conduct which created a grave risk of death to another person and thereby caused death, when he drove a speeding motor vehicle onto a busy New York City street and then down a crowded sidewalk at a high rate of speed for two blocks, while failing to brake when requested by an occupant of the car and commented as he continued down the sidewalk before striking the second victim that he could not stop because he had already killed someone ( People v. Gomez, 65 NY2d at 11-12). Likewise in People v. Daniels, 265 AD2d 909, lv denied 94 NY2d 878, the conduct of the defendant, i.e., driving while in an intoxicated condition, engaging a State Trooper in a high speed chase through populated areas, committing multiple Vehicle and Traffic Law violations, and refusing to stop despite the entreaties of his passengers, demonstrated a "wanton difference to human life or depravity of mind," as required to support a conviction for depraved indifference murder regarding his passengers. In People v. Padula, 197 AD2d 747, lv denied 82 NY2d 928, the evidence demonstrated that after becoming intoxicated, defendant, disregarding traffic devices, drove his high-powered sports car at the excessive rate of speed — between 70 and 80 miles per hour in a posted 30 mile per hour zone — on a "high volume" street, and although urged by his passenger to stop, failed to brake or take any evasive action to avoid colliding with other vehicles in the intersection, was ruled sufficient to sustain his second degree murder conviction. In each of these cases, the reckless conduct described occurred under circumstances which were deemed sufficient to justify punishing the defendant as severely as if he intentionally caused the death of another.
Defendant has cited two cases, People v. Thacker, 166 AD2d 102 (defendant, a truck driver, who caused the death of one person and seriously injured four others while operating his vehicle after having consumed alcohol, frantically made repeated attempts to slow his vehicle, sounded his horn, and swerved to avoid cars and pedestrians) and People v. France, 57 AD2d 432 (defendant, who was attempting to escape from capture by the police at 3:00 A.M., at high speed in a motor car and ignoring successive traffic signals, collided with another automobile causing the death of the driver and seriously injuring the passenger), which he argues exemplify factually similar circumstances to those presented in this case and that the courts determined them to be insufficient to support depraved indifference murder.
Unlike in those cases, however, the evidence in this case is sufficient to demonstrate heightened recklessness on the part of the defendant by virtue of his conscious disregard of the exceptional risk that death would result from driving, while under the influence of alcohol, at excessive rates of speed of up to 104 and 106 miles per hour in an area with a speed limit of 30 miles per hour just seconds before crashing into a line of traffic stopped at a red light, without applying the brakes until 2½ to 3 seconds before impact. Defendant left the scene of the crash before the police arrived, leaving behind a critically/fatally injured victim. A prima facie case of depraved indifference murder has been established. The motion to dismiss the indictment on the stated grounds is denied.
Defendant's contention that the indictment must be dismissed on the ground that there existed no probable cause for his arrest, cannot be sustained. As the People point out, the defendant was arrested pursuant to a superior court warrant of arrest issuing from a sealed indictment pursuant to CPL § 210.10 (3). The mandates of that section are clear. In circumstances where the defendant has not previously been held by a local criminal court for action by the grand jury and the filing of the indictment constituted the commencement of the criminal action, the superior court must order the indictment to be filed as a sealed instrument until the defendant is produced or appears for arraignment, and, except instances in which the district attorney requests otherwise, must issue a superior court warrant of arrest. Indeed, the United States Supreme Court long ago stated, "[i]t reasonably cannot be doubted that, in the court to which the indictment is returned, the finding of an indictment, fair upon its face, by a properly constituted grand jury, conclusively determines the existence of probable cause for the purpose of holding the defendant to answer" ( Ex parte United States, 287 US 241, 250). The court has determined that the grand jury was properly constituted and instructed and that sufficient evidence supported issuance of the indictment for the charged offenses. The motion to dismiss the indictment on this ground is denied.
Search Warrants
Defendant seeks suppression of any and all tangible evidence seized pursuant to the two search warrants issued in this case, one granted by Rochester City Court Judge Ellen M. Yacknin on October 21, 2003, for seizure of "a brown suede men's coat, described as 3/4 length" from 183 Earl Street, Rochester, New York, and the other granted by Monroe County Court Judge John J. Connell on November 3, 2003, for a search of the 2004 Cadillac alleged to have been driven by the defendant at the time of the crash. He contests the validity of these two search warrants on the grounds that they were issued on less than probable cause; that the search warrant issued on October 21, 2003, was illegally obtained due to lack of the consent by defendant's wife on the occasion Officer Snow previously entered the home and observed a long brown suede coat; and that it failed to comply with statutory requirements and is defective in that it is undated, unaccompanied by a return, and the inventory sheet reflects only the date the coat was collected; that the search warrant issued on November 3, 2003, failed to comply with statutory requirements and is defective in that it is undated, was returned 14 days after its issuance, the inventory left blank the date the warrant issued and the date seized, and specifies "air bad module" instead of air bag module. The People oppose suppression of the seized items and contend that both search warrants were valid in all respects and supported by the requisite probable cause.
First, both the Federal and State Constitutions mandate that warrants shall not issue except "upon probable cause. . . . and particularly describing the place to be searched, and the persons or things to be seized" (US Const 4th Amend; NY Const, art I, § 12; People v. Nieves, 36 NY2d 396, 401; People v. Henley, 135 AD2d 1136). To meet the probable cause requirement, a search warrant application must provide sufficient information "to support a reasonable belief that evidence of a crime may be found in a certain place" ( see People v. German, 251 AD2d 900, 901 lv denied, 92 NY2d 897). Probable cause does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information, i.e., knowledge of facts and circumstances "sufficient to support a reasonable belief that an offense has been or is being committed or that evidence of a crime may be found in a certain place" ( People v. Bigelow, 66 NY2d 417; People v. Flanders, 192 AD2d 1072, lv denied 81 NY2d 1073). "In making such a judgment, we must also bear in mind that '[i]n dealing with probable cause * * * we deal with probabilities. These are not technical; they are factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians act'" ( People v. Carrasquillo, 54 NY2d 248, 254, citing Brinegar v. United States, 338 US 160, 175). In New York, probable cause is the equivalent of reasonable cause (Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 70.10, at 277, citing People v. Johnson, 66 NY2d 398, 402, n. 2).
The form and content of search warrants are governed by CPL § 690.45 which provides that a search warrant obtained on a written application, as in this case, must contain: (1) the name of the issuing court; (2) the name, department or classification of the police officer to whom it is addressed; (3) a description of the property which is the subject of the search; (4) a description of the place, premises or person to be searched with an address, ownership, name or any other means to identification with certainty; (5) a direction authorizing the hours during which the warrant may be executed; (6) an authorization, where specially determined, that the executing police officers may enter the premises to be searched without giving notice of authority and purpose; (7) a direction that the warrant and any property seized thereunder be returned and delivered to the court without unnecessary delay. CPL § 690.30 (1) provides that a search warrant must be executed within ten days after the date of issuance and must be returned thereafter to the court without unnecessary delay. Furthermore, regarding the requirements for the execution of search warrants, subdivision five of CPL § 690.50 provides that "[u]pon seizing property pursuant to a search warrant, a police officer must without unnecessary delay return to the court the warrant and the property, and must file therewith a written inventory of such property, subscribed and sworn to by such officer."
Concerning the search warrant issued on October 21, 2003, the court finds first that none of the alleged defects support defendant's claim that it was defective for failure to comply with the requirements of the statute ( see CPL §§ 690.45; 690.30; 690.50). In any event, the search warrant references the application date, and the defendant acknowledges review of the inventory sheet submitted at the return of the warrant.
Defendant's bare assertions regarding the inability of Hilda Hopkins, based upon a disability for which a guardian had been appointed, to consent to police entry of her home on October 19, 2003, the date of the crash, are unsupported and as such, are insufficient as a basis for suppression. Additionally, a review of the contents of Mrs. Hopkins' supporting deposition given to Officer Snow on that date reflects her familiarity with and understanding of certain factual information pertinent to this case, and that such information, in her own words, was "freely" given.
Further review of this search warrant reveals that it particularly described the place to be searched and the property to be seized. The search warrant described the premises sought to be searched as "183 Earl Street, a 2½ story dwelling, the first floor being white cement block structure, the upper stories being tan vinyl siding. The address numerals, 183 are clearly visible in white on a black background, on the front porch of the building, about 5 inches tall. The building has a front porch, with front entrance door." The search warrant further specified that the property to be seized, consisting of only one item, "a brown suede men's coat, described as 3/4 length" was needed in order for police to examine it for trace evidence in the investigation of a fatal hit and run accident based upon a deposition given by a witness who stated that the suspect wore such a coat.
Furthermore, the search warrant application provided sufficient information to support a reasonable belief that evidence of a crime might be found at that address. Here, as to the existence of reasonable cause, the search warrant application recited the following facts based upon personal knowledge and investigation:
"On 10-19-2003, at about 2:17 A.M., a Cadillac automobile, N.Y registration CRH-3975, was involved in a motor vehicle accident. The Cadillac struck another vehicle, causing a chain reaction accident. As a result of this accident, Ms. Lindsay A. Kyle was killed. The Cadillac automobile was left at the scene, and the driver fled. The driver was seen, and described by Ms. Jennifer Doohan. Officer Robert Snow of the Rochester Police Depart. checked 183 Earl St., the registered address for the Cadillac automobile. There, he interviewed and deposed Hilda Hopkins. In Ms. Doohan's deposition, she described the driver of the Cadillac as having worn a brown suede coat. In her deposition to Off. Snow, Ms. Hopkins states that Danny G. Hopkins (resident of that house and registered owner of the striking Cadillac) owns a long brown suede coat."
The application states, further, that the supporting depositions of Jennifer Doohan, Jacob Stahley and Hilda Hopkins are attached and made a part of such application. The information set forth above is consistent with and reflective of that contained in the attached depositions of Jennifer Doohan and Hilda Hopkins. Furthermore, in her deposition dated "10/19/03," Hilda Hopkins stated that the "brown long suede coat" owned by the defendant, which she did not initially think was in the house when she spoke with Officer Snow, was actually hanging up by the door. In his deposition, Jacob Stahley also described his conversation at the crash scene with an individual wearing a "three quarter length brown coat." Taken together, such information is sufficient to establish a reasonable belief that evidence of the crime of leaving the scene of an incident without reporting (Vehicle and Traffic Law § 600-2), would be found at 183 Earl Street. It is the determination of the court that probable cause existed for the issuance of this search warrant. The seizure of the brown suede coat pursuant to the search warrant was not improper, and the defendant's motion to suppress such evidence on the ground that probable cause was lacking, is denied.
Nor can the defendant's allegations concerning the defective nature of the search warrant issued on November 3, 2003, be sustained. The application of Rochester Police Investigator Jon Northrup for the search warrant was sworn to on that date before Judge Connell who signed the search warrant acknowledging that proof by affidavit of this officer had been made before him on such date. As reflected in the Rochester Police Department Property Custody Report attached to the return, the items seized pursuant to the search warrant were received on November 4, 2003, a clear indication that the search warrant was executed within the statutory ten-day period. There has been no showing that any unreasonable or unnecessary delay was occasioned by its return on November 17, 2003, or that the defendant was prejudiced thereby in any way. Misspelling of the word bag as "bad" on the inventory sheet, is inconsequential given the air bag module's specific identification by part number, service number and serial number.
Upon further review, the search warrant reveals that it particularly described the motor vehicle to be searched and the property to be seized therefrom. The search warrant described the motor vehicle as a "2004 4 door Cadillac bearing NYS registration tag number CRH-3975, VIN 1G6DM577X40107619, weighing 4682 pounds, and currently registered to Danny G. Hopkins, residence 183 Earl Street, Rochester, NY, 14611," and specifically identified its exterior, interior and all its storage areas as the areas to be searched. It also listed the current location of the motor vehicle. Additionally, the search warrant sought, as evidence of the crime of leaving the scene of a serious personal injury or fatal incident and speeding in violation of Vehicle and Traffic Law §§ 600.2 and 1180, seizure of specified property consisting of the following: the vehicle's air bag module containing a record of the velocity change at the time of the air bag deployment to assist in the technical analysis and reconstruction of the crash, including, among other things, the speed of the Cadillac; any serology such as blood, saliva, human tissue, bodily fluids, and other substances containing DNA, any article or material containing such stains; fingerprints or any article containing such fingerprints; trace evidence of hairs or fibers; and personal property items, tending to show the identity of the owner or operator of the vehicle at the time of the crash.
The application for the search warrant also demonstrated knowledge of facts and circumstances sufficient to support a reasonable belief that evidence of a crime may be found in the Cadillac. After describing the manner in which the subject accident occurred on October 19, 2003, at approximately 2:15 A.M. at the intersection of Exchange Boulevard and Ford Street in the City of Rochester, State of New York, and that as a result of the collision between the Cadillac and the rear end of the Dodge vehicle being operated by Lindsay Kyle, Ms. Kyle suffered fatal injuries, the warrant application referred not only to the affiant's review of the crash, but, also, to the attached supporting deposition of Jennifer Doohan, wherein she set forth the following information:
"On Saturday night into the early morning of October 19, 2003 I was with my friend Barb Kellar. She was driving us to Henrietta. The car we were in was stopped on Exchange Blvd at the red light with Ford Street when I heard a loud crash. I got out of the car and I saw a Grey Cadillac that had been smashed in the front end and the driver was sitting behind the wheel. I called 911 on my cell phone and before I could even explain what had happened an ambulance was pulling up to the accident. The driver of the Cadillac had already gotten out of his car, he was a black male about 5'8" to 5'10" short hair with a thin mustache. He looked to be in his middle 30's and was wearing a 3/4 length brown suede coat on. The driver came up to me and asked me to hold him or hug him, something like that and then started apologizing saying he was so sorry and that he didn't mean to hit them like he was the one that caused the accident. I was talking to him and then I turned away and when I turned back the driver was gone."
In addition to this information, the warrant set forth the fact of specific training relative to the electronic data contained in the air bag module which the affiant, Police Investigator Jon Northrup had personally received from General Motors and Vetronics.
The information contained in this search warrant was sufficient to support a reasonable belief that evidence of a crime could be found in the Cadillac. The search of the Cadillac and the seizure of the contested items therefrom was proper. The defendant's motion to suppress the items seized pursuant to this search warrant on the ground that probable cause was lacking, is denied.
Subpoena Duces Tecum
Defendant also challenges, by way of a motion to suppress, the photo array used by Rochester police to obtain identification evidence from Jacob Stahley, a witness at the scene of the crash, on the grounds that the subpoena duces tecum utilized for retrieval of his employment photograph from the U.S. Postal Inspector, which was included in the photo array shown to the witness, was null and void because the grand jury was not empaneled and that the photograph was utilized to develop the case against him. Additionally, he asserts that no probable cause for his arrest even existed until the unsealing of the grand jury indictment on April 23, 2004. Defendant cites several cases which he contends stand for the proposition that use of subpoenas in the manner complained was improper ( see People v. Jovanovic, 176 Misc 2d 729, rev'd 263 AD2d 182; People v. MacGilfrey, 288 AD2d 554, lv denied 97 NY2d 757).
The People have presented the sworn affidavit of Sherry Crandall, Confidential Clerk to the Monroe County Grand Jury, and employee of the Monroe County District Attorney's Office, stating her familiarity with the dates of grand jury impanelment and that the Monroe County Grand Jury was impaneled and sitting during the months of October and November of 2003. Although they contend that no error occurred in the issuance of such subpoena, they do not dispute that the sealed indictment was returned in this case on April 23, 2004, as the result of grand jury proceedings held with respect to the defendant on April 6, 2004, April 13, 2004, and April 16, 2004.
The court has not been presented with a copy of the challenged grand jury subpoena which the defendant states was issued on October 31, 2003. It has long been recognized, however, that a district attorney may compel witnesses to produce physical evidence by subpoena only before the grand jury or the court where the proceeding or action is pending ( People v. Natal, 75 NY2d 379, cert denied 498 US 862; CPL § 610.20). Of the two cases relied upon by the defendant, only in People v. MacGilfrey did the court concern itself with the propriety of issuing a subpoena in circumstances where no grand jury proceeding regarding the defendant was pending. In that case, the police obtained a grand jury subpoena returnable before the Albany County Grand Jury on April 14, 1998, requiring Time-Warner Cable to produce its records concerning defendant's residence during a particular month in 1997. Said evidence was not presented to that grand jury, but to one empaneled in June 1998. The information learned by the police was used to question the defendant regarding the victim's claims concerning certain activities of defendant on the night she was first raped and sodomized by him.
In People v. Jovanovic, 176 Misc 2d 729, the court determined that disclosure pursuant to a subpoena duces tecum served by the defendant was inappropriate where he failed to make a clear and specific demonstration that third-party e-mails subpoenaed from the complainant's college e-mail account were highly material and relevant, were necessary or critical to his defense and that the information contained in the e-mails was not obtainable from other sources. On appeal from the judgment of conviction of kidnapping, assault, and sexual abuse, People v. Jovanovic, 263 AD2d 182, the appellate court reversed the defendant's convictions on the ground that the trial court improperly limited the use of certain evidence consisting of portions of e-mail communications between the defendant and the complainant.
The appellate court agreed with the defendant that, under such circumstances, the Time-Warner records were improperly obtained through the use of a subpoena since no grand jury proceeding concerning the defendant was pending and the records were possessed by police without statutory authority ( People v. McGilfrey, 288 AD2d 554, 555, citing People v. Natal, 75 NY2d 379, 385, cert denied 498 US 862; People v. Orzel, 192 AD2d 818, 819; CPL 610.25). The appellate court, however, ruled that county court's refusal to suppress the Time-Warner records was proper, nevertheless, because the defendant lacked standing he had no possessory or proprietary interest in such records ( People v. MacGilfrey, 288 AD2d at 555).
Similar reasoning applies in the instant circumstances. It is clear that the defendant's employee photograph was obtained from U.S. Post Office authorities by a subpoena in October 2003, prior to the presentation of evidence to the empaneled grand jury which returned the sealed indictment. However, the defendant has failed to demonstrate or even assert that he has a possessory or proprietary interest in his employee photo. In the absence of such interest, the defendant lacks standing with respect thereto. While he makes reference to a privacy interest in such photograph, defendant has provided no authority upon which the existence of such can be predicated. Therefore, his motion to suppress the photo array on the stated ground is denied.
Regarding defendant's claim that probable cause did not exist at the time the subpoena for retrieval of his photo from U.S. Postal authorities was obtained, it is well-settled that a subpoena duces tecum is not the equivalent of a search warrant for which a showing of probable cause is required; the question is one of relevance not probable cause ( Hynes v. Lefkkowitz, 62 AD2d 365, appeal dismissed 45 NY2d 734). No basis for suppression exists on this ground.
Identification
Defendant moves for an order suppressing testimony at trial of all testimony concerning any pretrial identification and any in-court identifications of the defendant. The notice pursuant to CPL § 710.30 furnished to the defendant indicates that the People intend to offer at trial the testimony of an individual by the name of Jacob Stahley who identified the defendant through a photographic array displayed to him on November 5, 2003. Contending that the photo array was impermissibly suggestive, defendant has moved for its suppression and requests a hearing pursuant to United States v. Wade, 388 US 218. The People oppose the motion for suppression of identification testimony, but do not oppose the grant of a hearing on the issue of the pretrial identification. The court, therefore, grants a Wade hearing on this issue.
Statements
With respect to defendant's motion to suppress any statements alleged to have been made by him to government agents on the ground that they were involuntarily made ( see CPL § 60.45), the People have indicated, via the notice served pursuant to CPL § 710.30, no intention to offer at trial evidence of any statements made by the defendant to a public servant. Under such circumstances, no hearing concerning voluntariness is necessary. Defendant's request for a hearing in order to explicate the issues concerning such statements, is therefore, denied.
Frye Hearing
Defendant has moved, in limine, for a hearing pursuant to Frye v. United States, 293 F 1013, to test the reliability of the information contained in the SDM (sensing diagnostic module or "black box") modules seized from the vehicle, a 2004 Cadillac alleged to have been driven by the defendant at the time of the crash. He contends that application of the Frye standard would preclude the admission of such information because the SDM module has not been generally accepted as reliable in the scientific community in this state as indicated by the absence of judicial precedent on this issue.
Defendant initially included the "On-Star" device as a subject of this motion, but it was established during oral arguments that the "On-Star" device was not working at the time of the crash and no evidence would be presented at trial with respect thereto. The court, therefore, makes no ruling concerning its admissibility under the standard articulated in Frye.
The People oppose a Frye hearing and urge this court to adopt the reasoning and findings set forth in Bachman v. General Motors Corporation, 332 Ill App 3rd (4th Dist 2003), a decision issued by an appellate level court in the State of Illinois recognizing SDM data as being generally accepted as reliable and accurate by the automobile industry and, therefore, admissible pursuant to Frye v. United States, 293 F 1013. They also refer the court to a Newark Village Court case decided on January 16, 2004, wherein the court, based upon its adherence to the Frye determination rendered in Bachman v. General Motors Corporation, concluded that the evidence of data recorded on a SDM was admissible ( People v. Christmann, 3 Misc 3d 309 defendant was charged with speeding and failure to exercise due care in a fatal automobile accident involving a pedestrian). Additionally, the People have submitted several other exhibits in support of their position, namely, a copy of the transcribed minutes of the Davis-Frye hearing held on January 10, 2003, in the Circuit Court for the County of Eaton in the case People of the State of Michigan v. Stephan Wood which reflects the trial court's decision to admit evidence of data collected from SDMs as well recognized and accepted in the scientific community; and three articles entitled, respectively, "Recording Automobile Crash Event Data" presented at the International Symposium on Transportation Recorders held May 3-5, 1999 and authored by Augustus "Chip" Chidester, John Hinch, members of the National Highway Traffic Safety Administration and Thomac C. Mercer, Kevin S. Schultz, representatives of the General Motors Corporation; "Real World Experience With Event Data Recorders" authored by Augustus "Chip" B. Chidester, John and Thomas A. Roston, all members of the National Highway Traffic Safety Administration (undated); and "Crash Data Retrieval System Validation Testing," a report of the Wisconsin State Patrol Academy issued on November 2, 2001. The People argue further that defendant's stated concerns regarding the SDM data limitations raise foundational issues regarding the specific reliability of the procedures used to generate data, all of which go to the weight of the evidence rather than its admissibility.
When discussing the Frye standard of admissibility in connection with DNA evidence, the New York Court of Appeals in People v. Wesley, 83 NY2d 417, 420-423 stated:
"While foundation concerns itself with the adequacy of the specific procedures used to generate the particular evidence to be admitted, the test pursuant to Frye v. United States ( 293 F 1013) poses the more elemental question of whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally. * * * The long-recognized rule of Frye v. United States ( supra) is that expert testimony based on scientific principles or procedures is admissible but only after a principle or procedure has 'gained general acceptance' in its specified field. In Frye ( supra, at 1014) the court stated: 'Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs' (emphasis supplied). * * * This Court has noted that the particular procedure need not be 'unanimously indorsed' by the scientific community but must be 'generally accepted as reliable' ( see, People v. Middleton, 54 NY2d 42, 42, 49, supra)."
Also in Wesley, the Court of Appeals acknowledged that application of the Frye standard to other types of novel scientific evidence, e.g., use of radar in speed detection ( People v. Magri, 3 NY2d 562, 565-566) and identification through bite marks ( People v. Middleton, 54 NY2d 42, 49-50), had resulted in a judicial determination concerning their general acceptance as reliable in the relevant scientific community.
The key to admissibility of novel or scientific evidence is general acceptance in the scientific community as reliable. According to one noted treatise, reliability may be established in at least three ways: (1) "general acceptance may be so notorious that the court may take judicial notice of it" (2) "acceptance may be established by reference to legal writings and judicial opinions" (3) if neither of the above can be resorted to, the trial judge "may conduct a hearing at which the proponent may establish admissibility by offering evidence of acceptance, including the expert's own testimony" (Prince, Richardson on Evidence § 7-311 [Farrell 11th ed]; cites omitted).
In this case, the court is persuaded, based upon its review of the cases and other supporting documentation submitted by the People, and in the absence of any contrary or contradictory evidence, that the SDM module technology has been generally accepted as reliable in the relevant scientific community. A Frye hearing is, therefore, unnecessary to determine the admissibility of evidence with respect thereto at trial. The defendant's request for such hearing is denied.
This Decision shall constitute the Order of the Court.