Opinion
Indictment No.: 18-0260-02
06-18-2018
THE PEOPLE OF THE STATE OF NEW YORK v. DESCHON IRISH and DYIBA KEITA, Defendant.
To: HON. ANTHONY A. SCARPINO, JR. District Attorney, Westchester County 111 Dr. Martin Luther King, Jr. Boulevard White Plains, New York 10601 BY: Kevin Jones, Esq. Assistant District Attorney Matthew Montana, Esq. Attorney for Defendant Keita 1019 Park Street PO Box 668 Peekskill, NY 10566
DECISION & ORDER
Defendant, DYIBA KEITA, having been indicted on or about March 15, 2018, for, acting in concert with co-defendant (Deschion Irish), the crimes of Robbery in the First Degree (Penal Law § 160.15 [3]); Robbery in the First Degree (Penal Law § 160.15 [4]); Robbery in the Second Degree (Penal Law § 160.15 [1]); Robbery in the Second Degree (Penal Law § 160.15 [2); Grand Larceny in the Fourth Degree (Penal Law § 155.30 [5](three counts), has filed an omnibus motion consisting of a Notice of Motion and an Affirmation in Support thereof. 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, 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.
Defendant's request to dismiss the indictment in the interest of justice is denied. The defendant has cited no persuasive or compelling factor, consideration or circumstances under CPL 210.40 warranting dismissal of this indictment. In reaching a decision on the motion, the court has examined the factors listed in CPL 210.40, which include, in relevant part, the seriousness and circumstances of the offense; the extent of harm caused by the offense; the evidence of guilt; the history, character and condition of the defendant; any exceptionally serious misconduct of law enforcement personnel; the purpose and effect of imposing upon the defendant a sentence authorized for the charged offenses; the potential impact of a dismissal on public confidence in the judicial system; the potential impact of dismissal upon the safety and welfare of the community; and other relevant facts suggesting that a conviction would not serve a useful purpose. Having done so, the court has discerned no compelling factor, consideration or circumstance which clearly demonstrates that further prosecution or conviction of the defendant would constitute or result in injustice. Accordingly, the defendant's motion to dismiss in the interest of justice is denied.
The indictment contains a plain and concise factual statement in each count which, without allegations of an evidentiary nature, asserts facts supporting every element of the offense charged and the defendant's commission thereof with sufficient precision as to clearly apprise the defendant of the conduct which is the subject of the indictment (CPL 200.50). The indictment charges each and every element of the crimes, and alleges that the defendant committed the acts which constitute the crimes at a specified place during a specified time period and, therefore, is sufficient on its face (People v Cohen, 52 NY2d 584 [1981]; People v Iannone, 45 NY2d 589 [1978]).
The grand jury was properly instructed (see People v Calbud, 49 NY2d 389 [1980]; People v Valles, 62 NY2d 36 [1984]; People v Burch, 108 AD3d 679 [2d Dept 2013]). The evidence presented, 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 NY3d 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 70.10[1]; see People v Flowers, 138 AD3d 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 AD3d 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 NY2d 523, 526 [1998]).
Additionally, the minutes reveal a quorum of the grand jurors was present during the presentation of evidence, 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.
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 AD3d 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 US 83 [1963]; Giglio v United States, 405 US 150 [1972]). The People have also acknowledged their duty to comply with People v Rosario, (9 NY2d 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.
Notably, the People have a 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 NY2d 1 [1993]; Giglio v United States, 405 US 150 [1972]; Brady v Maryland, 373 US 83 [1963]; People v Wooley, 200 AD2d 644 [2d Dept 1994]).
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.
Except to the extent that the 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 NY2d 423 [1996]; Matter of Brown v Grosso, 285 AD2d 642 [2d Dept 2001]; Matter of Brown v Appelman, 241 AD2d 279 [2d Dept 1998]; Matter of Catterson v Jones, 229 AD2d 435 [2d Dept 1996]; Matter of Catterson v Rohl, 202 AD2d 420 [2d Dept 1994]). C.
MOTION to STRIKE STATEMENT NOTICES and
to SUPPRESS NOTICED STATEMENTS
This motion is denied. Said notice is in conformity with the statutory requirements of CPL 710.30.
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/Dunaway 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 NY2d 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 US 200 [1979]). D.
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 (People v France, 12 NY3d 790 [2009]; People v Jones, 95 NY2d 721 [2001]; CPL 710.60[3][b]; see also People v Scully, 14 NY3d 861 [2010]).
The results of a search conducted pursuant to a facially sufficient search warrant are not subject to a suppression hearing (People v Arnau, 58 NY2d 27 [1982]). To the extent that the defendant challenges the sufficiency of the search warrants (for his Facebook account and his cellphone), that argument fails. Upon review of the four corners of the search warrant affidavits, the warrants were adequately supported by probable cause (see People v Keves, 291 AD2d 571 [2d Dept 2002]; see generally People v Badilla, 130 AD3d 744 [2d Dept 2015]; People v Elysee, 49 AD3d 33 [2d Dept 2007]). The defendant fails to demonstrate that the warrants were based upon affidavits containing false statements made knowingly or intentionally, or with reckless disregard for the truth (People v McGeachy, 74 AD3d 989 [2d Dept 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, not pursuant to the search warrant orders that this court signed for Facebook and an Apple cell phone, resulting in the seizure of property (see Mapp v Ohio, 367 US 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 US 200 [1979]). This hearing shall include conducting a hearing to address whether the defendant had a reasonable expectation of privacy as to the search of his co-defendant's home or business, to the extent it was searched, to constitute standing to challenge the seizure of any physical evidence (see Rakas v Illinois, 439 US 128 [1978]; People v Ramirez-Portoreal, 88 NY2d 99 [1996]; People v Ponder, 54 NY2d 160 [1981]; People v White, 153 AD3d 1369 [2d Dept 2017]; People v Hawkins, 262 AD2d 423 [2d Dept 1999]). If it is determined that the defendant has standing then a Mapp/Dunaway hearing will be conducted prior to trial to determine the propriety of the any search resulting in the seizure of properly (Mapp v Ohio, 367 US 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 US 200 [1979]). E.
MOTION to STRIKE IDENTIFICATION NOTICE and
PRECLUDE IDENTIFICATION TESTIMONY
CPL 710
The motion to strike is denied. Said notice is in conformity with the statutory requirements of CPL 710.30.
Defendant's motion is granted to the limited extent of conducting a hearing prior to trial to determine whether the identifying witness had a sufficient prior familiarity with the defendant as to render them impervious to police suggestion (People v Rodriguez, 79 NY 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 US 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. F.
MOTION for SANDOVAL and VENTIMIGLIA HEARINGS
Defendant has moved for a pre-trial hearing to permit the trial court to determine the extent, if at all, to which the People may inquire into the defendant's prior criminal convictions, prior uncharged criminal, vicious or immoral conduct. The People have consented to a Sandoval hearing. Accordingly, it is ordered that immediately prior to trial a hearing shall be conducted pursuant to People v Sandoval (34 NY2d 371[1974]). At said hearing, the People shall be required to notify the 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 the defendant's credibility if he elects to testify at trial (CPL 240.43).
At the hearing, the 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. The 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 NY2d 118 [1986]; People v Malphurs, 111 AD2d 266 [2d Dept 1985]).
To the extent defendant's application is for a hearing pursuant to People v Ventimiglia (52 NY2d 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 the defendant during its case in chief (see People v Molineaux, 168 NY2d 264 [1901]). If the People move to introduce such evidence, the defendant may renew this aspect of his motion. G.
MOTION FOR a SEVERANCE and
FOR a SEPARATE TRIAL
The defendant moves for a severance from his co-defendant and for a separate trial. Defendant presents no sworn allegations of fact or evidence to support the assertion that undue prejudice will result by joinder nor does he particularize the reasons as to why he would be prejudiced by a joint-trial with co-defendant. Defendant's speculation that a co-defendant would pursue an antagonistic defense is an insufficient basis to proceed with separate trials (People v Chaplin, 181 AD2d 828 [2d Dept 1992]). Defendant has failed to show good cause for severance (CPL 200.40 [1]).
The defendant was properly joined in the same indictment (CPL 200.40[1]). All charges in the incident arise out of the same criminal transaction and are related in time and location relying on the same evidence. The court may, however, for good cause shown order that defendant be tried separately. Good cause includes a showing that defendant would be "unduly prejudiced by a joint trial" (CPL 200.40[1]). Further, where the proof against all defendants is supplied by the same evidence, "only the most cogent reasons warrant a severance"(People v Bornholdt, 33 NY2d 75, 87 [1973]; People v Kevin Watts, 159 AD2d 740 [2d Dept 1990]) and, ". . . a strong public policy favors joinder, because it expedites the judicial process, reduces court congestion, and avoids the necessity of recalling witnesses. . ." (People v Mahboubian, 74 NY2d 174, 183 [1989]).
Defendant's motion to sever on the ground that there would potentially be prejudice arising from a Sandoval or Huntley ruling is denied as premature, with leave to renew after a Sandoval or Huntley ruling, and upon a showing that a joint trial will result in unfair prejudice to him and substantially impair his defense. This court must determine whether the co-defendant's statements are admissible and if so, if it is possible to redact the co-defendant's statements and whether the co-defendant will be testifying at defendant's trial. Accordingly, the defendant's motion for a severance is denied as premature, with leave to renew upon a determination of the admissibility of co-defendant's alleged statements, and upon a showing that a joint trial will result in unfair prejudice to his and substantially impair his defense.
Notably, a limiting instruction at trial would properly direct the jury to separately consider the proof as to each crime charged, thereby eliminating any prejudice to the defendant (see People v Veeny, 215 AD2d 605 [2d Dept 1995]).
Defendant's claim that severance is necessary because the noticed statements of his codefendant (and/or confession) would be prejudicial as a Bruton violation is premature. In Bruton v United States, 391 US 123 [1968], the Supreme Court held that the admission of a confession made by one defendant, who does not testify, and which contains references implicating his codefendant, violates the latter's right of cross-examination under the confrontation clause. The court noted that there is a substantial risk that the jury, even with limiting instructions, may consider the implicating references in determining the codefendant's guilt. Unless the implicating references can be effectively deleted, the statement is not admissible unless separate trials are had. However, the New York Court of Appeals has defined certain instances where the Bruton rule would not be violated including where the confessing defendant testifies at the trial, thus affording the codefendant an opportunity to cross-examine him (People v Anthony, 24 NY2d 696 [1969]) and where the codefendant has himself confessed substantially to the same effect as the confessing defendant (People v McNeil, 24 NY2d 550 [1969]). Defendant's motion is denied as premature, with leave to renew. H.
MOTION for DISCLOSURE of DEALS and AGREEMENTS
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 NY2d 1 [1993]; Giglio v United States, 405 US 150 [1972]; Brady v Maryland, 373 US 83 [1963]; People v Wooley, 200 AD2d 644 [2d Dept 1994]).
Defendant's motion for a Darden/Goggins hearing is denied since he has failed to demonstrate what relevant testimony any such witness would have on the issue of his innocence or guilt (see People v Goggins, 34 NY2d 163 [1974]; People v Rivera, 98 AD3d 529 [2d Dept 2012]). Notwithstanding, the People have submitted sworn allegations of fact that there was no involvement by undercover agents or informants in the defendant's arrest.
The foregoing constitutes the opinion, decision and order of this court. Dated: White Plains, New York
June 18, 2018
/s/_________
Honorable Anne E. Minihan
Acting Supreme Court Justice To: HON. ANTHONY A. SCARPINO, JR.
District Attorney, Westchester County
111 Dr. Martin Luther King, Jr. Boulevard
White Plains, New York 10601
BY: Kevin Jones, Esq.
Assistant District Attorney
Matthew Montana, Esq.
Attorney for Defendant Keita
1019 Park Street
PO Box 668
Peekskill, NY 10566