Opinion
Indict 18-0833
11-07-2018
THE PEOPLE OF THE STATE OF NEW YORK, v. JOSE LOPEZ, Defendant
HON. ANTHONY A. SCARPINO, JR. District Attorney, Westchester County, CLARE J. DEGNAN, ESQ. Attorney for Defendant Legal Aid Society of Westchester County
Unpublished Opinion
HON. ANTHONY A. SCARPINO, JR. District Attorney, Westchester County, CLARE J. DEGNAN, ESQ. Attorney for Defendant Legal Aid Society of Westchester County
DECISION & ORDER
Schwartz, J.
Defendant, JOSE LOPEZ, having been indicted on or about July 25, 2018 for burglary in the third degree, as a felony (PL §140.20); criminal possession of stolen property in the fifth degree, as a misdemeanor (PL §165.40); petit larceny, as a misdemeanor (PL §155.25); has filed an omnibus motion which consists of a Notice of Motion, an Affirmation in Support and a Memorandum of Law. In response, 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.
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 N.Y.2d 584 [1981]; People v Iannone, 45 N.Y.2d 589 [1978]).
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, 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, if accepted as true, is legally sufficient to establish every element of each offense charged (CPL 2IO.3O[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 7O.lO[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]).
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]). 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.
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 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 TO STRIKE & 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 7lO.6O[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]).
To the extent defendant's motion seeks to strike the noticed statements on the grounds they do not meet the requirements of CPL 710.30, that branch of the motion is denied as the noticed statements state the time, place and sum and substance of the statements as required to be sufficient (see People v Lopez, 84 N.Y.2d 425, 428 [1994]).
D. MOTION TO STRIKE & SUPPRESS IDENTIFICATION TESTIMONY PURSUANT TO CPL 710
The motion to strike the identification notice is denied. This motion to suppress it 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 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 identification was 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 FOR SANDOVAL AND VENTIMLGLIA 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 N.Y.2d 371 [1974]). At said hearing, the People shall be required to notify the defendant of all specific instances of defendant's 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 the defendant elects to testify at trial (CPL 240.43).
At the hearing, the defendant shall bear the burden of identifying any instances of defendant's prior misconduct that defendant submits the People should not be permitted to use to impeach defendant's credibility. The defendant shall be required to identify the basis of defendant's belief that each event or incident may be unduly prejudicial to defendant's ability to testify as a witness on defendant's own behalf (see People v Matthews, 68 N.Y.2d 118 [ 1986]; People v Malphurs, 111 A.D.2d 266 [2d Dept 1985]).
Defendant's application for a hearing, pursuant to People v Ventimiglia (52 N.Y.2d 350 [1981]) 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 N.Y.2d 264 [1901]). If the People move to introduce such evidence, the defendant may renew this aspect of the motion.
F. MOTION TO STRIKE ALIBI NOTICE
Defendant's motion to strike the alibi notice 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 [2d Dept 1992]; People v Cruz, 176 A.D.2d 751 [2d Dept 1991]; People v Gill, 164 A.D.2d 867 [2d Dept 1990]) and provides equality in the required disclosure (People v Peterson, 96 A.D.2d 871 [2d Dept 1983]; see generally Wardius v Oregon, 412 U.S. 470 [ 1973]).
G. MOTION TO STRIKE ALLEGED PREJUDICIAL STATEMENT FROM INDICTMENT
That branch of the defendant's motion seeking to strike the allegation ".. .and against the peace and dignity of the People of the State of New York" from the indictment is without -merit and is denied (see People v Winters, 194 A.D.2d 703, 704 [2nd Dept 1993]).
H. MOTION FOR DISCLOSURE OF AGREEMENTS
The People recognize their continuing duty to disclose the terms of any deal or agreement made between the People and any prosecution witness (see Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.E.2d 215; Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.E.2d 104; People v. Steadman, 82 N.Y.2d 1, 603 N.Y.S.2d 382, 623 N.E.2d 509; People v. Wooley, 200 A.D.2d 644, 606 N.Y.S.2d 738, appeal denied 83 N.Y.2d 878, 613 N.Y.S.2d 138, 635 N.E.2d 307) at the earliest possible date.
The foregoing constitutes the decision and order of this court.