Opinion
Indictment No. 18-0487-01
10-22-2018
THE PEOPLE OF THE STATE OF NEW YORK v. MORRIS SANTANIELLO AND ASAN SEFULOSKI, Defendant.
To: HON. ANTHONY A. SCARPINO, JR. District Attorney, Westchester County 111 Dr. Martin Luther King, Jr. Boulevard White Plains, New York 10601 BY: Samuel Malebranche, Esq. Assistant District Attorney Jean-Robert Auguste, Esq. 10 Fiske Place Mt. Vernon, New York 10551 Attorney for Defendant Santaniello
DECISION & ORDER
Defendant, MORRIS SANTANIELLO, by Westchester County Indictment No. 18-0487-01, is charged, while aiding, abetting and acting in concert with codefendant, Asan Sefuloski, with Burglary in the Second Degree (Penal Law § 140.25[2]) (two counts) and Grand Larceny in the Second Degree (Penal Law § 155.40[1]) has filed an omnibus motion consisting of a Notice of Motion and an Affirmation in Support. 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 NY2d 584 [1981]; People v Aeonian, 45 NY2d 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 AD2d 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 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]).
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.
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 her 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 SUPPRESS PHYSICAL EVIDENCE
Defendant's motion to suppress all evidence seized pursuant to the search warrants is denied. 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]). 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]).
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]).
Notwithstanding, 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 resulting in the seizure of property, not pursuant to the search warrants (see Mapp v Ohio, 367 US 643 [1961]). Notably, the defendant has not set forth any facts to suggest that he had a legitimate expectation of privacy in most of the places and items searched (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]). Consequently, the hearing should determine whether defendant has standing to challenge the suppression of any physical evidence seized, not pursuant to the search warrants (see People v McCullum, 159 AD3d 8 [2d Dept 2018]; People v Oliver, 39 AD3d 880 [2d Dept 2007]). If it is determined that defendant has standing then a Mapp/Dunaway hearing will be conducted prior to trial to determine the propriety of the search resulting in the seizure of the property (Mapp v Ohio, 367 US 643 [1961]). The hearing will also address whether any evidence was obtained in violation of defendant's Fourth Amendment rights (see Dunaway v New York, 442 US 200 [1979]). D.
MOTION to SUPPRESS NOTICED STATEMENTS
This branch of the defendant's motion seeking to suppress noticed 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 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]). E.
MOTION to SUPPRESS IDENTIFICATION TESTIMONY
CPL 710
The People served notices pursuant to CPL 710.30(1)(b) of identification testimony. Defendant's motion to suppress that identification testimony is granted, on consent, to the limited extent of directing that a pre-trial hearing be held as to whether the identifying witness had a sufficient prior familiarity with defendant as to render the witness impervious to police suggestion (see People v Rodriguez, 79 NY 2d 445 [1992]). If the court finds that there was not a sufficient prior familiarity with 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 US 218 [1967]). Specifically, the court shall determine whether the identification was so improperly suggestive as to taint any in-court identification. If the identification is 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]).
Defendant's application for a hearing, pursuant to People v Ventimiglia (52 NY2d 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 NY2d 264 [1901]). If the People move to introduce such evidence, the defendant may renew this aspect of his motion. G.
MOTION for DISCLOSURE of INFORMANTS
Defendant's motion for the disclosure of the confidential informant is denied at mistime since the informant is a prosecution witness not subject to mandatory disclosure pursuant to CPL 240.20. Moreover, on August 7, 2018, this court signed a protective order pursuant to CPL 240.50 on the grounds that turning over discovery might compromise the confidentiality of the informant and in order to protect the identity and safety of the informant (see generally People v White, 170 AD2d 629 [2d Dept 1991]). H.
MOTION FOR a SEVERANCE and
FOR a SEPARATE TRIAL
The defendant moves for a severance from his codefendant and for a separate trial. Since his codefendant took a plea deal, the motion is denied as moot. I.
MOTION for LEAVE to FILE FUTURE MOTIONS
This motion is denied. Should defendant intend to bring further motions for omnibus relief, he must do so by order to show cause setting forth reasons as to why his motion was not and could not have been brought in conformity with CPL 255.20. J.
MOTION to CONDUCT PRE-TRIAL HEARINGS
TWENTY DAYS in ADVANCE of TRIAL
The defendant's motion to schedule pre-trial hearings twenty days prior to trial is denied. The hearings will be scheduled at a time that is convenient to the Court, upon due consideration of all of its other cases and obligations. Dated: White Plains, New York
October 22, 2018
/s/_________
Honorable Anne E. Minihan
Acting Justice of the Supreme Court To: HON. ANTHONY A. SCARPINO, JR.
District Attorney, Westchester County
111 Dr. Martin Luther King, Jr. Boulevard
White Plains, New York 10601
BY: Samuel Malebranche, Esq.
Assistant District Attorney Jean-Robert Auguste, Esq.
10 Fiske Place
Mt. Vernon, New York 10551
Attorney for Defendant Santaniello