Opinion
Indictment No. 21-0448
04-27-2022
THE PEOPLE OF THE STATE OF NEW YORK v. NICOLE SMITH, Defendant
Hon. Miriam E. Rocah Westchester County District Attorney Attn: Assistant District Attorney Elizabeth H. Shumejda Richard L. Ferrante, Esq. Attorney for Defendant Nicole Smith
Unpublished Opinion
Hon. Miriam E. Rocah Westchester County District Attorney Attn: Assistant District Attorney Elizabeth H. Shumejda
Richard L. Ferrante, Esq. Attorney for Defendant Nicole Smith
DECISION & ORDER
ROBERT J. PRISCO, JUDGE
Defendant NICOLE SMITH is charged by Indictment Number 21-0448 with two counts of Tampering with Physical Evidence pursuant to Penal Law [PL] §215.40 (2) [Counts Five and Six] and one count of Criminal Facilitation in the Fourth Degree pursuant to PL § 115.00 (1) [Count Seven], The charges pertain to Defendant's alleged engagement in conduct which aided another person in the commission of a felony and Defendant's alleged disposal of a tire wrench and a blue ski mask that were allegedly used during the commission of an assault. The above offenses are alleged to have occurred at 17 South 13th Avenue in the City of Mount Vernon, at approximately 7:00 p.m. on March 28, 2021.
On February 10, 2022, Defendant was arraigned by the Honorable David S. Zuckerman on the charges contained in Indictment Number 21-0448. Attached to the indictment are a CPL § 710.30 (1) (a) Notice regarding the People's intent to offer evidence of statements allegedly made by the defendant to members of the Mount Vernon Police Department, five (5) CPL § 710.30 (1) (b) Notices signifying the People's intent to offer testimony of observations of the defendant either at the time or place of the commission of the offenses or upon some other relevant occasion by a witness or witnesses who have previously identified her as such, and the People's Demand for a Notice of Alibi pursuant to CPL § 250.20.
The CPL § 710.30 (1) (a) notice pertains to oral statements that were allegedly recorded electronically and made by Defendant to "POI .Patterson" and "Detective Puff" at Mount Vernon Police Department Headquarters at approximately 2:00 p.m. on April 6, 2021.
On February 24, 2022, the People filed a Certificate of Compliance pursuant to CPL § 245.50 (1) which includes a "Statement of Readiness," wherein "[t]he People confirm and announce their readiness for trial on all counts charged." Attached to the Certificate of Compliance is a copy of the People's Discovery Disclosure Index pursuant to CPL §§ 245.20 and 245.50, which includes, but is not limited to, disclosures pertaining to written or recorded statements of Defendant, Grand Jury testimony, tapes and electronic recordings, Judgments of Conviction for defendants and witnesses excluding law enforcement and expert witnesses, and tangible objects possessed by Defendant or Co-Defendant(s). Also attached to the Certificate of Compliance are Discovery Package Transmittal Notices from the Westchester County District Attorney's Office.
A Notice of Motion, an Attorney's Affirmation in Support of Omnibus Motion (hereinafter "Attorney's Affirmation"), and a Memorandum of Law in Support of Defendant's Pre-Trial Motions (hereinafter "Memorandum of Law"), all dated March 29, 2022, were filed by Defendant, seeking various forms of judicial intervention and relief.
On or about April 11, 2022, the People filed an Affirmation in Opposition and a Memorandum of Law. The People also provided the Court with an unredacted certified copy of the stenographic transcript of the August 25, 2021, Grand Jury proceeding, along with copies of the Grand Jury Exhibits.
After consideration of the above referenced submissions and the unredacted certified stenographic transcript of the August 25, 2021, Grand Jury proceeding, the Court decides Defendant's Motion as follows:
1. MOTION FOR INSPECTION OF GRAND JURY MINUTES AND DISMISSAL OR REDUCTION OF THE CHARGES CONTAINED IN INDICTMENT NUMBER 21-0448 DUE TO THE LEGAL INSUFFICIENCY OF THE EVIDENCE PRESENTED AND THE INSTRUCTIONS PROVIDED.
Citing CPL §§ 210.20 (1) (b), (1-a) and 210.30, Defendant requests that the Court inspect the minutes of the Grand Jury proceeding and dismiss Indictment Number 21-0448 or certain counts thereof "as not supported by legally sufficient evidence" (see Paragraph (a), Page 1, of Defendant's Notice of Motion and Point I, Page 2, of Defendant's Memorandum of Law). Defendant also requests that the Court inspect the minutes of the Grand Jury proceeding to determine whether the provided instructions were legally sufficient and proper and whether the Grand Jury proceeding was defective (see Point I (a)- (t), Pages 2-5, of Defendant's Memorandum of Law).
In their response, the People consent to an in-camera inspection of the Grand Jury minutes by the Court, contend that the indictment is supported by legally sufficient evidence (see Point I, Pages 1-2, of the People's Memorandum of Law), and assert that "Defendant has failed to meet her high burden of showing the existence of any error in the grand jury proceeding which rendered it defective" (see Point I, Page 2, of the People's Memorandum of Law).
The Court has conducted an in-camera review of the entirety of the Grand Jury proceedings, having examined an unredacted certified copy of the stenographic transcript of the August 25, 2021 presentation.
On August 25, 2021, prior to the commencement of the given sworn testimony, the People specifically inquired of and confirmed with the foreperson that twenty-two (22) grand jurors were present. The record establishes that the twenty-one (21) grand jurors who deliberated and voted on the charges contained in Indictment Number 21-0448 were present throughout the one-day presentation of the case.
"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 [2003], quoting People v Carroll, 93 N.Y.2d 564, 568 [1999]; see People v Bello, 92 N.Y.2d 523, 525 [1998]; People v Jensen, 86 N.Y.2d 248, 251 [1995]; People v Jennings, 69 N.Y.2d 103, 114 [1986]; People v Booker, 164 A.D.3d 819, 820 [2d Dept 2018]; People v Hulsen, 150 A.D.3d 1261, 1262 [2d Dept 2017], Iv. denied 30 N.Y.3d 950 [2017]; People v Flowers, 138 A.D.3d 1138, 1139 [2d Dept 2016]). Legally sufficient evidence is "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 Mills, 1 N.Y.3d at 274; People v Franov, 146 A.D.3d 978, 979 [2d Dept 2017]; People v Wisey, 133 A.D.3d 799, 800 [2d Dept 2015]; People v Ryan 125 A.D.3d 695, 696 [2d Dept 2015], Iv. denied 25 N.Y.3d 1077 [2015]). "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 Castro, 202 A.D.3d 815, 816 [2d Dept 2022], quoting People v Bello, 92 N.Y.2d at 526; see People v Addimando, 197 A.D.3d 106, 121 [2d Dept 2021]; People v Ryan, 125 A.D.3d at 696; People v Woodson, 105 A.D.3d 782, 783 [2d Dept 2013]; People v Jessup, 90 A.D.3d 782, 783 [2d Dept 2011]). This 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'" (People v Bello, 92 N.Y.2d at 526, quoting People v Deegan, 69 N.Y.2d 976, 979 [1987]; see People v Castro, 202 A.D.3d at 816; People v Pino, 162 A.D.3d 910, 911 [2d Dept 2018]; People v Arcila, 152 A.D.3d 783, 784 [2d Dept 2017], Iv. denied 30 N.Y.3d 978 [2017]).
Here, the evidence presented to the Grand Jury, when viewed in the light most favorable to the People, was legally sufficient to establish and support the charges contained in Indictment Number 21-0448.
A Grand Jury proceeding is "defective," warranting dismissal of the indictment, only where the "proceeding . . . fails to conform to the requirements of CPL Article 190 to such degree that the integrity thereof is impaired and prejudice to the defendant may result" (CPL § 210.35 (5); see People v Arevalo, 172 A.D.3d 891, 892 [2d Dept 2019]; People v Williams, 171 A.D.3d 804, 805 [2d Dept 2019]). Dismissal of an indictment under CPL § 210.35 (5) is an "exceptional remedy" that "should ... be limited to those instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the Grand Jury" (People v Huston, 88 N.Y.2d 400, 409 [1996]; see People v J.S. All. Dental, PC., 202 A.D.3d 708, 709 [2d Dept 2022]; People v Addimando, 197 A.D.3d at 121; People v Williams, 171 A.D.3d at 805; People v Burch, 108 A.D.3d 679, 680 [2d Dept 2013], Iv. denied 22 N.Y.3d 1087 [2014]; People v Thompson, 81 A.D.3d 670, 671 [2d Dept 2011], aff'd 22 N.Y.3d 687 [2014]). In the case at bar, the Court finds that no such wrongdoing, conduct or errors occurred.
While a prosecutor is required to instruct the grand jury on the law with respect to matters before it (People v Valles, 62 N.Y.2d 36, 38 [1984]; People v Tunit, 149 A.D.3d 1110, 1110 [2d Dept 2017]; People v Samuels, 12 A.D.3d 695, 698 [2d Dept 2004]; see CPL § 190.25 (6)), "a Grand Jury need not be instructed with the same degree of precision that is required when a petit jury is instructed on the law" (People v Calbud, Inc., 49 N.Y.2d 389, 394 [1980]; see People v Caracciola, 78 N.Y.2d 1021, 1022 [1991]; People v Batashure, 75 N.Y.2d 306, 311 [1990]; People v Goetz, 68 N.Y.2d 96, 115 [1986]; People v Valles 62 N.Y.2d 36, 38 [1984]; People v Tunit, 149 A.D.3d at 1110; People v Castaldo, 146 A.D.3d 797, 798 [2d Dept 2017]; People v Burch, 108 A.D.3d at 680; People v Malan-Pomaeyna, 72 A.D.3d 988 [2d Dept 2010]). It is well settled that such instructions are sufficient so long as they provide "enough information to enable [the grand jury] intelligently to decide whether a crime has been committed and to determine whether there exists legally sufficient evidence to establish the material elements of the crime" (People v Calbud, Inc., 49 N.Y.2d at 394-395; see People v Valles 62 N.Y.2d at 38; People v Ruvalcaba, 187 A.D.3d 1553, 1554 [4th Dept 2020], Iv. denied 36 N.Y.3d 1053 [2021]; People v Tunit, 149 A.D.3d at 1110-1111; People v Patterson, 73 A.D.3d 1215, 1215 [2d Dept 2010], Iv. denied 15 N.Y.3d 776 [2010]; People v Malan-Pomaeyna, 72 A.D.3d at 988).
Here, after an in-camera review of the unredacted certified copy of the stenographic transcript of the Grand Jury presentation on August 25, 2021, this Court determines that the Grand Jury proceeding was not defective and that the instructions given during the presentation were legally sufficient and proper.
Accordingly, for the reasons set forth above, Defendant's motion to dismiss or reduce the charges contained within Indictment Number 21-0448 is denied.
2. MOTION TO SUPPRESS STATEMENTS.
Citing CPL Article 710, Defendant moves to suppress "certain statements noticed by the People alleged to have been made by the defendant" (see Paragraph (b), Page 1, of Defendant's Notice of Motion and Point II, Page 6, of Defendant's Memorandum of Law). In the alternative, Defendant requests that the Court conduct a "Huntley hearing" (see Paragraph (b), Page 1, of Defendant's Notice of Motion). Specifically, Defendant contends that the "statements were made involuntarily and in violation of the defendant's rights under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution, Article I, Section 6 of the New York Constitution and CPL 60.45 (2)" (see Point II, Page 6, of Defendant's Memorandum of Law). Defendant further moves pursuant to CPL § 710.20 (4), "to suppress all evidence, including tangible property, identification evidence and any other statements of defendant, which were obtained as a result of . or due to the... unlawfully obtained statement... [as] 'fruits of the poisonous tree'" (see Point II, Page 6, of Defendant's Memorandum of Law).
As to Defendant's Fifth Amendment claims, the People "consent to a Huntley hearing, after which her motion to suppress should be denied" and contend that the defendant's statements were made voluntarily (see Point II, Page 5, of the People's Memorandum of Law). Specifically, the People submit that "[p]rior to asking [Defendant] any questions, Officer Patterson read defendant her Miranda rights, which defendant indicated she understood" and "that defendant intelligently and knowingly waived her Miranda rights prior to speaking with the officers in this case" (see Point II, Pages 5-6, of the People's Memorandum of Law). The People further allege that "even if there was any defect in the waiver, Miranda warnings were not even required since defendant was not in custody" (see Point II, Page 6, of the People's Memorandum of Law). Finally, the People aver that while they are "unaware of any evidence obtained pursuant to defendant's statements, since defendant's statements were voluntarily given, anything obtained therefrom would be lawful and not subject to suppression" (see Point II, Page 7, of the People's Memorandum of Law).
The People state that "(t]he reading of Defendant's Miranda rights, her waiver of those rights, and the subsequent interview that transpired were captured on video, a copy of which was provided to defense counsel on February 18, 2022 via the Westchester County District Attorney's Office Discovery Portal" (see Point II, Page 6, of the People's Memorandum of Law). Items A and G of the Discovery Disclosure Index, referring to "Written and Recorded Statements of Defendant or Co-Defendant" and "Tapes and Electronic Recordings," allege that the recording of Defendant's Interview at the Mount Vernon Police Department was provided to defense counsel on "2/18/22." A Discovery Package Transmittal Notice also reflects that the video of the "Nicole Smith Interview" was provided to defense counsel on February 18, 2022.
Regarding Defendant's Sixth Amendment claims, the People argue that Defendant's motion should be denied because "defendant has failed to provide any facts in support thereof' and "at the time defendant made her statements, no accusatory instrument had been filed, no attorney actually entered the case, nor did defendant invoke her right to counsel" (see Point II, Page 7, of the People's Memorandum of Law).
Upon the issues raised by the parties, Defendant's motion to suppress statements is granted to the extent that hearings pursuant to People v Huntley, 15 N.Y.2d 72 [1965], and Dunaway v New York, 442 U.S. 200 [1979], will be conducted to determine the voluntariness and admissibility of the noticed statements allegedly made by Defendant to members of the Mount Vernon Police Department at approximately 2:00 p.m. on April 6, 2021.
3. MOTION TO SUPPRESS IDENTIFICATION TESTIMONY.
Pursuant to CPL § 710.30 (1) (b), the People served five (5) notices upon Defendant regarding their intent to offer trial testimony from a witness or witnesses who allegedly identified the defendant via two (2) video identifications that allegedly occurred at 17 South 13lh Avenue in the City of Mount Vernon and at the Mount Vernon Police Department on March 29,2021, a single photographic identification at the Mount Vernon Police Department on March 30, 2021, and two (2) video identifications that allegedly occurred on August 25, 2021, at the Westchester County Grand Jury.
Citing CPL Article 710 and United States v Wade, 338 U.S. 218 (1967), Defendant moves to suppress any "pre-trial identifications of the defendant noticed by the People" (see Paragraph (c), Page 1, of Defendant's Notice of Motion and Point III, Page 7, of Defendant's Memorandum of Law). In the alternative, Defendant requests that the Court conduct a "Wade hearing" (see Paragraph (c), Page 1, of Defendant's Notice of Motion).
In response, the People contend that Defendant's motion should be denied because the identifications of defendant were confirmatory in nature and were therefore not subject to suppression pursuant to CPL § 710.30 (see Point III, Pages 8-9, of the People's Memorandum of Law). Specifically, as to the four identifications made by the victim, the People argue that as "the victim is the superintendent of the building in which defendant resided at the time of the crime(s)... [there] is no question, and defendant does not contest anywhere in her motion papers, that she and the victim were well known to each other" and, therefore, such identifications cannot "be the product of undue suggestiveness" (see Point III, Page 8, of the People's Memorandum of Law). The People also argue that the identifications should not be suppressed because "the victim has an independent source for his identifications of defendant" (see Point III, Page 9, of the People's Memorandum of Law).
As to the identification made by Officer Patterson as he was testifying before the grand jury, the People contend that since "the officer [was] viewing a video-recorded interview with defendant, a video of an event for which he himself experienced... [as] an active participant in the interview... this viewing represents a ratification of the events depicted" and, therefore, "there is no risk of suggestiveness" (see Point III, Pages 9-10, of the People's Memorandum of Law).
As the People contend that the alleged victim was so familiar with Defendant so as to negate any possibility of suggestiveness, the Court will conduct a hearing pursuant to People v Rodriguez, 79 N.Y.2d 445, 454 [1992], in connection with such identification(s). At the conclusion of the Rodriguez hearing, if this Court concludes that the identification(s) was(were) confirmatory, no further hearing on the issue of identification testimony is needed. However, if this Court does not so conclude, a bifurcated Wade hearing will then be held. Defendant's motion to suppress the identification testimony of Officer Patterson is granted to the extent that a Wade hearing will be conducted to determine if he "was merely ratifying the events he had personally experienced as depicted in the [videotape]" (People v Deverow, 153 A.D.3d 550, 551 [2d Dept 2017]).
4. MOTION TO SUPPRESS PHYSICAL EVIDENCE.
Citing CPL Article 710, Mapp v Ohio, 367 U.S. 643 [1961], and Dunaway v New York, 442 U.S. 200 [1979], Defendant moves to suppress any "tangible property seized from the defendant and any items, property or statements derived therefrom as such seizure occurred in violation of rights secured to the defendant under the Constitutions of the United States and the State of New York" (see Paragraph (d), Page 2, of Defendant's Notice of Motion). In the alternative, Defendant requests that the Court conduct a "Mapp/Dunaway hearing" (see Paragraph (d), Page 2, of Defendant's Notice of Motion).
In response, the People state that "[a]s there was no physical evidence seized from the defendant in this case, or from any place where [she] would have an objectively reasonable expectation of privacy, this branch of defendant's motion should be denied" (see Point IV, Page 10, of the People's Memorandum of Law). Additionally, Item M of the Discovery Disclosure Index referring to "Tangible Objects Possessed by Defendant or Co-Defendant(s)," indicates that a "metal object/wrench" and a "Blue hat/mask" were possessed by both Defendant and codefendant Jeffers, but that such objects were "[n]ot recovered."
Accordingly, as the People contend that there was no physical evidence seized/recovered from Defendant, the motion is denied as moot.
5. MOTION FOR SEVERANCE.
Citing CPL § 200.40, Defendant moves to sever the trial of the co-defendants and claims that "it is prejudicial to the defendant to have the defendants tried jointly" (see Paragraph (e), Page 2, of Defendant's Notice of Motion and Point IV, Page 8, of Defendant's Memorandum of Law). Specifically, Defendant contends that "[a]lthough the charges here arise out of the same incident, the codefendants are not charged with any of the same crimes in the Indictment" (see Point IV, Page 8, of Defendant's Memorandum of La:w).' Defendant further alleges that "it is possible that the codefendants in this case will have antagonistic defenses" (see Point IV, Page 8, of Defendant's Memorandum of Law).
In response, the People claim that defendants were properly joined in Indictment Number 21-0448 pursuant to CPL § 200.40 (1) (c), since the charges arise from the same incident on March 28, 2021, that the same evidence will be presented to prove the guilt of both defendants, and that "mere inconsistent defenses are not grounds for severance" (see Point VI, Pages 12-13, of the People's Memorandum of Law).
Primarily, the Court finds that the joinder of Defendant and co-defendant Jeffers in Indictment Number 21-0448 is proper as "all the offenses charged are based upon the same criminal transaction" (CPL § 200.40 (1) (c)). Nonetheless, Defendant is entitled to seek severance "for good cause shown" which includes, but is not limited to, "a finding that a defendant.. .will be unduly prejudiced by a joint trial" (CPL § 200.40 (1)).
In People v Mahboubian, 74 N.Y.2d 174, 183-184 [1989], the Court of Appeals, while recognizing that "[s]ome degree of prejudice is of course inherent in every joint trial," provided that "severance is compelled where the core of each defense is in irreconcilable conflict with the other and where there is a significant danger, as both defenses are portrayed to the trial court, that the conflict alone would lead the jury to infer defendant's guilt" (see People v Cardwell, 78 N.Y.2d 996, 997-998 [1991]; People v Perry, 194 A.D.3d 849, 850 [2d Dept 2021], Iv. denied 37 N.Y.3d 1098 [2021]; People v Boylan, 193 A.D.3d 964, 965 [2d Dept 2021]; People v Caldwell, 150 A.D.3d 1021, 1022 [2d Dept 2017], Iv. denied 29 N.Y.3d 1124 [2017]; People v Lau, 148 A.D.3d 932, 935 [2d Dept 2017]; People v Lessane, 142 A.D.3d 562, 563 [2d Dept 2016]; People v Mack, 89 A.D.3d 864, 865 [2d Dept 2011], Iv. denied 18 N.Y.3d 959 [2012]). Moreover, where, as here, "the proof of the charges against the defendant will be premised on the same evidence used to establish [her] codefendant's guilt, only the most cogent reasons would warrant a severance" (People v Fassino, 169 A.D.3d 921, 923 [2d Dept 2019], Iv. denied 33 N.Y.3d 975 [2019]; see People v Bornholdt, 33 N.Y.2d 75, 87 [1973], cert, denied 416 U.S. 905 [1974]; People v Boylan, 193 A.D.3d at 965; People v Caldwell, 150 A.D.3d at 1022; People v Turnbull, 52 A.D.3d 747 [2d Dept 2008], Iv. denied 11 N.Y.3d 836 [2008]).
While recognizing that this Court must apply the standard set forth in Mahboubian "prospectively, based on its discretionary assessments of the strategies and evidence as forecast by the parties" (People v Mahboubian, 74 N.Y.2d at 184-185; see People v Cardwell, 78 N.Y.2d at 998; People v Lessane, 142 A.D.3d at 564), there has not been anything forecast showing that "a joint trial necessarily will...result in unfair prejudice to the moving party and substantially impair [her] defense" (People v Gordon, 197 A.D.3d 723, 724 [2d Dept 2021], quoting People v Mahboubian, 74 N.Y.2d at 184; see People v Fassino, 169 A.D.3d at 923). Further, because "severance is not required solely because of hostility between the defendants, differences in their trial strategies or inconsistencies in their defenses" (People v Gordon, 197 A.D.3d at 724, quoting People v Mahboubian, 74 N.Y.2d at 184; see People v Fassino, 169 A.D.3d at 923; People v Davydov, 144 A.D.3d 1170 [2d Dept 2016], Iv. denied 29 N.Y.3d 996 [2017]), Defendant's speculative contention that "it is possible that the codefendants in this case will have antagonistic defenses" (see Point IV, Page 8, of Defendant's Memorandum of Law) does not provide the necessary cogent reason to warrant severance (see People v Bornholdt, 33 N.Y.2d at 87; People v Martin, 154 A.D.2d 554 [2d Dept 1989], Iv. denied 75 N.Y.2d 815 [1990]; People v Gonzalez, 137 A.D.2d 558 [2d Dept 1988], Iv. denied 72 N.Y.2d 957 [1988]). Therefore, Defendant's motion for severance is denied.
6. MOTION FOR PRECLUSION OF DEFENDANT'S PRIOR CRIMES OR BAD ACTS; ASOCIATED SANDOVAL AND VENTIMIGLIA HEARINGS.
Relying on People v Sandoval, 34 N.Y.2d 371 [1974], and People v. Ventimiglia, 52 N.Y.2d 350 [1981], Defendant requests "a hearing to determine the admissibility of any prior criminal or bad acts for use by the [P]eople on their direct case or during the cross examination of the defendant" (see Paragraph (f), Page 2, of Defendant's Notice of Motion and Point V, Page 9, of Defendant's Memorandum of Law).
In response, the People acknowledge their Sandoval and Ventimiglia obligations and consent to hearings on same if such disclosure is made (see Point V, Page 11, of the People's Memorandum of Law). The People also indicate that should they "seek to introduce defendant's prior bad acts on their direct case, the People will inform defense counsel and the Court and request a hearing before introducing such Molineux evidence" (see Point V, Page 11, of the People's Memorandum of Law).
CPL § 245.20 (3) (a) provides, in substance and pertinent part, that "[t]he prosecution shall disclose to the defendant a list of all misconduct and criminal acts of the defendant not charged in the indictment, which the prosecution intends to use at trial for purposes of impeaching the credibility of the defendant." To the extent that the People seek to use any of Defendant's prior acts of misconduct or criminality on their direct case as substantive proof of any material issue in the case, CPL § 245.20 (3) (b) likewise obligates "[t]he prosecution [to] disclose to. the defendant a list of all misconduct and criminal acts of the defendant not charged in the indictment, which the prosecution intends to use at trial [for such purpose]." Lastly, CPL § 245.20 (3) further requires that "the prosecution shall designate whether it intends to use each listed act for impeachment and/or as substantive proof"
As the People have concededly not yet disclosed to the defendant a list of her acts of misconduct and criminality which the prosecution intends to use at trial for purposes of impeaching her credibility or as substantive proof of any material issue in the case, or designated their intended use thereof, this Court will not order the requested Sandoval and Ventimiglia hearings at the present time. Should the People seek to use at trial any prior acts of misconduct or criminality of the defendant for CPL § 245.20 (3) (a) or (b) purposes, they are directed to disclose to Defendant a list of all such acts of misconduct and criminality and to designate the intended purpose of each listed act. Pursuant to CPL § 245.10 (1) (b), the People "shall perform [these] supplemental discovery obligations as soon as practicable but not later than fifteen (15) calendar days prior to the first scheduled trial date" (emphasis added). If the People do so, Defendant may renew her application to preclude the People's use of such acts of misconduct or criminality at trial or, in the alternative, request a hearing thereon to determine the admissibility thereof. If the People fail to do so, no use of such acts will be permitted at trial.
7. RESERVATION OF RIGHTS TO MAKE ADDITIONAL PRE-TRIAL MOTIONS.
Defendant's request to make additional pre-trial motions (see Page 2 of Defendant's Notice of Motion and Page 10 of Defendant's Memorandum of Law) is granted to the extent that, if sought, she will be required to serve and file an Order to Show Cause detailing the reason(s) why said motions were not brought in conformity with the time provisions and motions practice set forth in CPL § 255.20 (1) and (2), respectively.
However, notwithstanding the provisions of CPL § 255.20 (1) and (2), this Court will "entertain and decide on its merits, at any time before the end of the trial, any appropriate pre-trial motion based upon grounds of which the defendant could not, with due diligence, have been previously aware, or which, for other good cause, could not reasonably have been raised within the period specified in [CPL § 255.20 (1)] or included within the single set of motion papers as required by [CPL § 255.20 (2)]" (CPL § 255.20 (3); see People v Wisdom, 23 N.Y.3d 970, 9.72 [2014]; People v Marte, 197 A.D.3d 411, 413 [1st Dept 2021]; People v Burke, 174 A.D.3d 915, 915 [2d Dept 2019]; People v Milman, 164 A.D.3d 609, 610 [2d Dept 2018]).
The foregoing constitutes the Decision and Order of this Court.