Opinion
Ind. No.: 17-1173
05-14-2019
THE PEOPLE OF THE STATE OF NEW YORK v. JUAN RODRIGUEZ, KRISTOPHER JONES and DIVINE WILTSHIRE, Defendants.
HON. ANTHONY A. SCARPINO, JR. District Attorney, Westchester County 111 Dr. Martin Luther King Jr. Blvd. White Plains, New York 10601 BY: Anne H. Stark, Esq. Assistant District Attorney RICHARD L. FERRANTE, ESQ. Attorney for Defendant Rodriguez 399 Knollwood Road, Suite 111 White Plains, NY 10603 ELI M. MOORE, ESQ. Attorney for Defendant po Box 11H Scarsdale, NY 10583
DECISION & ORDER ZUCKERMAN, J.
Defendants Juan Rodriguez and Kristopher Jones stand accused under Indictment No. 17-1173 of one count of Burglary in the Second Degree. As set forth in the Indictment, it is alleged that, on or about July 31, 2017, Defendants, in Westchester County, New York, while aiding and abetting and acting in concert with each other and others, did enter or remain unlawfully in a dwelling with the intent to commit a crime therein. By Notice of Motion dated April 1 and April 3, 2019, respectively, with accompanying Affirmations, Defendants move for omnibus relief. In response, the People have submitted Affirmations in Opposition dated March 1, 2019.
The motion is disposed of as follows:
I. DEFENDANT RODRIGUEZ
A. MOTION FOR DISCOVERY AND INSPECTION
Defendant's motion for discovery is granted to the extent provided for in Criminal Procedure Law Article 240 and/or provided by the People. If any items set forth in CPL Article 240 have not been provided to Defendant pursuant to the consent discovery order in the instant matter, said items are to be provided forthwith. Further, the bill of particulars set forth in the voluntary disclosure form provided to Defendant has adequately informed her of the substance of her alleged conduct and in all respects complies with CPL §200.95.
The People acknowledge their continuing duty to disclose exculpatory material (see Brady v Maryland, 373 US 83 [1963] and Giglio v United States, 405 US 150 [1971]) at the earliest possible date. If the People are or become aware of any material which is arguably exculpatory but they are not willing to consent to its disclosure, they are directed to disclose such material to the Court for its in camera inspection and determination as to whether such will be disclosed to the defendant.
To any further extent, including regarding the production of Rosario material at this time, the application is denied as seeking material or information beyond the scope of discovery (see People v Colavito, 87 NY2d 423 [1996]; Matter of Catterson v Jones, 229 AD2d 435 [2 Dept 1996]; Matter of Catterson v Rohl, 202 AD2d 420 [2 Dept 1994]; Matter of Brown v Appelman, 241 AD2d 279 [2 Dept 1998]). B. MOTION TO INSPECT THE GRAND JURY MINUTES AND TO DISMISS AND/OR REDUCE THE INDICTMENT
Defendant moves pursuant to CPL §§210.20(1)(b) and (c) to dismiss the indictment, or counts thereof, on the grounds that the evidence before the Grand Jury was legally insufficient and that the Grand Jury proceeding was defective within the meaning of CPL §210.35. On consent of the People, the Court has reviewed the minutes of the proceedings before the Grand Jury.
Pursuant to CPL §190.65(1), an indictment must be supported by legally sufficient evidence which establishes that the defendant committed the offenses charged. Legally sufficient evidence is competent evidence which, if accepted as true, would establish each and every element of the offense charged and the defendant's commission thereof (CPL §70.10[1]); People v Jennings, 69 NY2d 103 [1986]). "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 Bello, 92 NY2d 523 (1998); People v Ackies, 79 AD3d 1050 (2 Dept 2010). In rendering a determination, "[t]he reviewing court's inquiry is limited to whether the facts, if proven, and the inferences that logically flow from those facts supply proof of each element of the charged crimes and whether the grand jury could rationally have drawn the inference of guilt." Bello, supra, quoting People v Boampong, 57 AD3d 794 (2 Dept 2008-- internal quotations omitted).
A review of the minutes reveals that the evidence presented, if accepted as true, would be legally sufficient to establish every element of the offenses charged (see CPL §210.30[2]). Accordingly, Defendant's motion to dismiss or reduce for lack of sufficient evidence is denied.
With respect to Defendant's claim that the Grand Jury proceeding was defective within the meaning of CPL §210.35, a review of the minutes supports a finding that a quorum of the grand jurors was present during the presentation of evidence and at the time the district attorney instructed the Grand Jury on the law, that the grand jurors who voted to indict heard all the "essential and critical evidence" (see People v Collier, 72 NY2d 298 [1988]; People v Julius, 300 AD2d 167 [1 Dept 2002], lv den 99 NY2d 655 [2003]), and that the Grand Jury was properly instructed (see People v Calbud, 49 NY2d 389 [1980] and People v. Valles, 62 NY2d 36 [1984]).
In making this determination, the Court does not find that release of the Grand Jury minutes or certain portions thereof to the parties was necessary to assist the Court. C. MOTION FOR A HUNTLEY HEARING
Defendant moves to suppress noticed statements pursuant to CPL §710.20(3). The People, in their Affirmation in Opposition, state that there was no impropriety in obtaining the statements attributable to Defendant. They do, however, consent to a hearing in the issue. Consequently, the motion to suppress noticed statements is granted to the extent that a Huntley hearing is ordered to determine the voluntariness of the noticed statements. D. MOTION FOR A WADE HEARING
Defendant moves to suppress a noticed identification procedure pursuant to CPL §710.20(3). The People, in their Affirmation in Opposition, state that there was no impropriety in the identification procedure attributable to Defendant in the instant matter, and that it actually occurred when a police witness was testifying in the Grand Jury and was shown a still photograph taken from a video and a police photo, and asked if Defendant was the person portrayed in the two photos. Consequently, the motion to suppress a noticed identification procedure is granted to the extent that a Wade hearing is ordered to determine the propriety of the noticed identification procedure. E. MOTION FOR SANDOVAL/VENTIMIGLIA/MOLINEUX HEARING
1. Sandoval - Granted, solely to the extent that a Sandoval hearing shall be held immediately prior to trial at which time:
A. The People must notify the Defendant of all specific instances of the Defendant's prior uncharged criminal, vicious or immoral conduct of which the People have knowledge and which the People intend to use at trial for purposes of impeaching the credibility of the Defendant (see, CPL §240.43); and
B. Defendant must then sustain his burden of informing the Court of the prior misconduct which might unfairly affect him as a witness in his own behalf (see, People v. Malphurs, 111 A.D.2d 266 [2 Dept. 1985]).
2. Ventimiglia/Molineux - Upon the consent of the People, in the event that the People determine that they will seek to introduce evidence at trial of any prior bad acts of the Defendant, including acts sought in their case in chief such as the prior crime used to elevate Count 1 of the Indictment to a Felony, they shall so notify the Court and defense counsel and a Ventimiglia/Molineux hearing (see People v Ventimiglia, 52 NY2d 350 [1981]; People v Molineux, 168 NY 264 [1901]) shall be held immediately prior to trial to determine whether or not any evidence of uncharged crimes may be used by the People, including to prove their case in chief. The People are urged to make an appropriate decision in this regard sufficiently in advance of trial to allow any Ventimiglia/Molineux hearing to be consolidated and held with the other hearings herein.
I. DEFENDANT JONES
A. MOTION TO INSPECT THE GRAND JURY MINUTES AND TO DISMISS AND/OR REDUCE THE INDICTMENT
Defendant moves pursuant to CPL §§210.20(1)(b) and (c) to dismiss the indictment, or counts thereof, on the grounds that the evidence before the Grand Jury was legally insufficient and that the Grand Jury proceeding was defective within the meaning of CPL §210.35. On consent of the People, the Court has reviewed the minutes of the proceedings before the Grand Jury.
Pursuant to CPL §190.65(1), an indictment must be supported by legally sufficient evidence which establishes that the defendant committed the offenses charged. Legally sufficient evidence is competent evidence which, if accepted as true, would establish each and every element of the offense charged and the defendant's commission thereof (CPL §70.10[1]); People v Jennings, 69 NY2d 103 [1986]). "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 Bello, 92 NY2d 523 (1998); People v Ackies, 79 AD3d 1050 (2 Dept 2010). In rendering a determination, "[t]he reviewing court's inquiry is limited to whether the facts, if proven, and the inferences that logically flow from those facts supply proof of each element of the charged crimes and whether the grand jury could rationally have drawn the inference of guilt." Bello, supra, quoting People v Boampong, 57 AD3d 794 (2 Dept 2008-- internal quotations omitted).
A review of the minutes reveals that the evidence presented, if accepted as true, would be legally sufficient to establish every element of the offenses charged (see CPL §210.30[2]). Accordingly, Defendant's motion to dismiss or reduce for lack of sufficient evidence is denied.
With respect to Defendant's claim that the Grand Jury proceeding was defective within the meaning of CPL §210.35, a review of the minutes supports a finding that a quorum of the grand jurors was present during the presentation of evidence and at the time the district attorney instructed the Grand Jury on the law, that the grand jurors who voted to indict heard all the "essential and critical evidence" (see People v Collier, 72 NY2d 298 [1988]; People v Julius, 300 AD2d 167 [1 Dept 2002], lv den 99 NY2d 655 [2003]), and that the Grand Jury was properly instructed (see People v Calbud, 49 NY2d 389 [1980] and People v. Valles, 62 NY2d 36 [1984]).
In making this determination, the Court does not find that release of the Grand Jury minutes or certain portions thereof to the parties was necessary to assist the Court. B. MOTION FOR A WADE HEARING
Defendant moves to suppress a noticed identification procedure pursuant to CPL §710.20(3). The People, in their Affirmation in Opposition, state that there was no impropriety in the identification procedure attributable to Defendant in the instant matter, and that it actually occurred when a police witness was testifying in the Grand Jury and was shown a still photograph taken from a video and a police photo, and asked if Defendant was the person portrayed in the two photos. Consequently, the motion to suppress a noticed identification procedure is granted to the extent that a Wade hearing is ordered to determine the propriety of the noticed identification procedure. C. MOTION FOR DISCOVERY AND INSPECTION
Defendant's motion for discovery is granted to the extent provided for in Criminal Procedure Law Article 24 0 and/or provided by the People. If any items set forth in CPL Article 240 have not been provided to Defendant pursuant to the consent discovery order in the instant matter, said items are to be provided forthwith. Further, the bill of particulars set forth in the voluntary disclosure form provided to Defendant has adequately informed her of the substance of her alleged conduct and in all respects complies with CPL §200.95.
The People acknowledge their continuing duty to disclose exculpatory material (see Brady v Maryland, 373 US 83 [1963] and Giglio v United States, 405 US 150 [1971]) at the earliest possible date. If the People are or become aware of any material which is arguably exculpatory but they are not willing to consent to its disclosure, they are directed to disclose such material to the Court for its in camera inspection and determination as to whether such will be disclosed to the defendant.
To any further extent, including regarding the production of Rosario material at this time, the application is denied as seeking material or information beyond the scope of discovery (see People v Colavito, 87 NY2d 423 [1996]; Matter of Catterson v Jones, 229 AD2d 435 [2 Dept 1996]; Matter of Catterson v Rohl, 202 AD2d 420 [2 Dept 1994]; Matter of Brown v Appelman, 241 AD2d 279 [2 Dept 1998]). D. MOTION FOR SANDOVAL/VENTIMIGLIA/MOLINEUX HEARING
1. Sandoval - Granted, solely to the extent that a Sandoval hearing shall be held immediately prior to trial at which time:
A. The People must notify the Defendant of all specific instances of the Defendant's prior uncharged criminal, vicious or immoral conduct of which the People have knowledge and which the People intend to use at trial for purposes of impeaching the credibility of the Defendant (see, CPL §240.43); and
B. Defendant must then sustain his burden of informing the Court of the prior misconduct which might unfairly affect him as a witness in his own behalf (see, People v. Malphurs, 111 A.D.2d 266 [2 Dept. 1985]).
2. Ventimiglia/Molineux - Upon the consent of the People, in the event that the People determine that they will seek to introduce evidence at trial of any prior bad acts of the Defendant, including acts sought in their case in chief such as the prior crime used to elevate Count 1 of the Indictment to a Felony, they shall so notify the Court and defense counsel and a Ventimiglia/Molineux hearing (see People v Ventimiglia, 52 NY2d 350 [1981]; People v Molineux, 168 NY 264 [1901]) shall be held immediately prior to trial to determine whether or not any evidence of uncharged crimes may be used by the People, including to prove their case in chief. The People are urged to make an appropriate decision in this regard sufficiently in advance of trial to allow any Ventimiglia/Molineux hearing to be consolidated and held with the other hearings herein.
All other motions are denied. Dated: White Plains, New York
May 14, 2019
/s/ _________
HON. DAVID S. ZUCKERMAN, A.J.S.C. HON. ANTHONY A. SCARPINO, JR.
District Attorney, Westchester County
111 Dr. Martin Luther King Jr. Blvd.
White Plains, New York 10601
BY: Anne H. Stark, Esq.
Assistant District Attorney RICHARD L. FERRANTE, ESQ.
Attorney for Defendant Rodriguez
399 Knollwood Road, Suite 111
White Plains, NY 10603 ELI M. MOORE, ESQ.
Attorney for Defendant
po Box 11H
Scarsdale, NY 10583