Opinion
No. 2014NY080060.
07-02-2015
The PEOPLE of the State of New York v. Julio SURIEL, Defendant.
BACKGROUND
On October 20, 2014, Defendant, Julio Suriel (“Suriel”), was arraigned upon a criminal court information charging him with three counts: 1) Penal Law (“PL”) § 195.05, obstructing governmental administration in the second degree; 2) Vehicle and Traffic Law (“VTL”) § 1192(3), operating a motor vehicle while intoxicated; and 3) VTL § 1192(1), operating a motor vehicle while impaired by alcohol. Defendant was represented by the Legal Aid Society (“LAS”) at arraignment. Defendant objected to representation by the Legal Aid Society. The case was adjourned to December 1, 2014.
On November 19, 2014, Defendant filed a Demand to Change Attorney seeking to proceed pro se, styling himself not as a defendant, but as Counter Plaintiff. However, pursuant to N.Y. City Criminal Court Act § 31, the jurisdiction of this court is limited to hearing, trying and determining misdemeanor or lesser charges committed within the City of New York. Accordingly, this court lacks jurisdiction to determine any civil suits Suriel may purport to have. Furthermore, Suriel is the only defendant charged in the accusatory instrument. Therefore, Suriel is not a Counter Plaintiff and is properly referred to as the Defendant.
On November 28, 2014, Defendant filed a motion to dismiss. Defendant asserts that: (i) the People failed to state a claim for which relief can be granted; (ii) The People of the State of New York is a legal fiction; (iii) the state has not shown that Defendant caused harm; (iv) Defendant did not violate anyone's legal rights; (v) the court lacks standing to hear the case; (vi) that there is not a true adversary in this proceeding; (vii) there is nothing alleged that indicates the statutes of New York apply to the Defendant; (viii) statutes created by the State of New York are not law and are not binding on the Defendant without his consent; and (ix) that the state may not require a license to drive.
On December 1, 2014, Defendant was permitted to proceed pro se with a Legal Aid attorney as advisor. Defendant opposed LAS involvement in the case in even that limited capacity. The case was adjourned to December 18, 2014.
A second motion to dismiss was filed on December 11, 2014. The December 11, 2014 motion to dismiss asserts that because the assistant district attorney who was at arraignments was not at the December 1, 2014 calendar appearance, and because the People did not respond to Defendant's pro se “Special Appearance Demand For Dismissal” (the November 28, 2014 motion to dismiss), the Court lacks jurisdiction to hear the case.
On December 18, 2014, LAS was reassigned as counsel. A Criminal Procedure Law (“CPL”) Article 730 examination was ordered by the court on December 18, 2014, and the case was adjourned to February 6, 2015 for the court to receive the results of the examination.
Defendant filed a motion to dismiss pursuant to CPL § 30.30 on February 6, 2015.
On February 6, 2015, the court denied Defendant's motions to dismiss and adjourned the case to March 12, 2015 for the court to receive the results of the CPL 730 examination.
On March 12, 2015, in accordance with the results of the CPL 730 examinations, Suriel was found fit to proceed; Suriel's motion to proceed pro se was granted; a motion schedule was set; and the case was adjourned to May 19, 2015.
Defendant filed the present omnibus motion on April 22, 2015.
On May 19, 2015, the PL § 195.05 charge was dismissed upon the People's motion. The People filed their response to Defendant's omnibus motion together with a Voluntary Disclosure Form (“VDF”), demand for notice of alibi, and demand for reciprocal discovery. Furthermore, upon the People's consent, Huntley, Mapp, Dunaway and refusal hearings were granted. The court reserved decision on the remaining portions of the motion.
THE PRESENT MOTION
By his present omnibus motion, Defendant seeks the following relief:
Renewal, pursuant to CPLR § 2221(e), of his previous motions to dismiss;
Dismissal of the accusatory instrument:
Pursuant to CPL § 30.30 ;
For lack of facial sufficiency;
Pursuant to CPL § 170.40 in furtherance of justice;
Alleging that the court lacks subject matter jurisdiction; and
Due to the Defendant having assertedly lost certain rights without due process of the law;
An order prohibiting the People from introducing evidence of Defendant's criminal history, prior bad acts, or any uncharged criminal acts;
An order prohibiting the People from cross-examining Defendant should he choose to testify;
Ordering a hearing to review the audibility of any recordings the People may utilize at trial;
Ordering the People to provide transcripts of any recordings they wish to utilize at trial;
Declaring VTL §§ 1192(3) and 1192(1) unconstitutional;
Declaring PL § 195.05 unconstitutional;
Preventing Assistant District Attorneys (“ADA”) Jessica Wash and John Junig from proceeding in this or any other case against defendant;
Precluding, pursuant to CPL § 710.30(3), the People from introducing statements made by Defendant or testimony regarding identification of Defendant;
Suppressing physical evidence pursuant to CPL §§ 710. 20(1), 710. 20(4) and 710.70(1), or ordering a suppression hearing pursuant to CPL § 710.60(4) ;
Ordering that all pretrial hearings be held at least twenty (20) days before the start of trial;
Ordering the People to turn over Brady materials;
Seeking a bill of particulars and pretrial discovery;
Reserving the right to make further motions; and
For such other and further relief as this court may deem just and proper.
Defendant's motion is utterly lacking in factual allegations.
The People oppose defendant's motion. Additionally, the People request the following:
Pursuant to CPL § 250. 20, that Defendant supply:
The place or places where the defendant claims to have been at the time of the commission of the alleged crimes; and
The names, residential addresses, places of employment and address thereof of every alibi witness upon whom the Defendant intends to rely to establish the Defendant's presence elsewhere than at the scene of the alleged crimes at the time of their commission;
Pursuant to CPL § 240.30(1), that Defendant supply:
Any written report or document concerning a physical or mental examination, or scientific test, experiment, or comparisons, made by or at the request or direction of Defendant, if Defendant intends to introduce such at trial; and
Any photograph, drawing, tape, or other electronic recording which Defendant intends to introduce at trial; and
That, pursuant to CPL § 250.10(2), Defendant be precluded from introducing psychiatric evidence at trial.
DISCUSSION
Regarding PL § 195.05: Denied as moot.
The PL § 195.05 charge was dismissed upon the People's motion. Therefore, those aspects of Defendant's motion which address PL § 195.05 are denied as moot.
Renewal: Denied
Pursuant to CPLR § 2221(e), a motion to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and shall contain reasonable justification for the failure to present such facts on the prior motion.”
Defendant's motion is utterly lacking in factual allegations either new or old. Furthermore, Defendant has failed to indicate any change in law since the determination of his prior motions. Accordingly, Defendant's motion to renew his prior motions is denied.
Dismissal pursuant to CPL § 30.30: Denied
The Defendant was charged with a top count of VTL § 1192(3), a misdemeanor with a possible sentence of imprisonment up to one (1) year. Accordingly, pursuant to CPL § 30.30(1)(b), the People must be ready for trial within ninety (90) days of the commencement of this action. The following speedy trial calculation mandates a denial of this motion.
SPEEDY TRIAL CALCULATION
October 20, 2014 to December 1, 2014: 0 days chargeable.
At arraignment on October 20, 2014, Suriel was represented by Edward McCarthy, Esq., of the Legal Aid Society, who indicated that Suriel wished to proceed pro se and had an application regarding subject matter jurisdiction. Mr. McCarthy recommended an adjournment to allow Defendant to make his applications and motions. The case was adjourned to allow LAS to determine if Suriel was eligible for its services or, if needed, for Suriel to retain private counsel.
Pursuant to CPL § 30.30(4)(b), “the period of delay resulting from a continuance granted by the court at the request of, or with the consent of, the defendant or his counsel” is excluded from computations of the time in which the People must be ready.
As the adjournment was at the request of defense counsel, the entire adjournment is excluded from speedy trial calculations.
Defendant filed the first of several motions to dismiss on November 28, 2014.
Pursuant to CPL § 30.30(4)(a), a reasonable period of delay resulting from pre-trial motions is not chargeable to the People. See, People v. Brown, 99 N.Y.2d 488 (2003). Accordingly, the period from November 28, 2014 to December 1, 2014 is not chargeable to the People and the time is excluded from speedy trial calculations.
December 1, 2014 to December 18, 2014: 0 days chargeable.
Defendant's November 28, 2014 motion was still under consideration at the December 1, 2014 appearance. Therefore, this adjournment is not chargeable to the People.
Defendant filed a second motion to dismiss on December 11, 2014.
December 18, 2014 to February 6, 2015: 0 days chargeable.
At the December 18, 2014 court appearance, LAS was reinstated as counsel. An Article 730 examination, to determine Defendant's competency to stand trial, was ordered.
Pursuant to CPL § 30.30(4)(a), delays resulting from “proceedings for the determination of competency” are excluded from speedy trial calculations.
Defendant's motions to dismiss were pending throughout this adjournment. Accordingly, due to both the pending motions and the ordered Article 730 examination, the entire adjournment is excluded from speedy trial calculations.
February 6, 2015 to March 12, 2015: 0 days chargeable.
Defendant filed a third motion to dismiss on February 6, 2015. Defendant's motions to dismiss were denied. The case was adjourned for the court to receive the results of the ordered Article 730 examination.
The People are permitted a reasonable time after hearings are ordered in which to prepare for trial. See People v. Green, 90 A.D.2d 705 (1st Dep't), appeal denied, 58 N.Y.2d 784 (1982) ; People v. Davis, 80 AD3d 494 (1st Dep't 2011).
Accordingly, both because of the need for the Article 730 examination and because the People have a reasonable time following pre-trial motions in which to prepare for trial, this adjournment is not chargeable to the People.
March 12, 2015 to May 19, 2015: 0 days chargeable.
On March 12, 2015, in accordance with the results of the Article 730 examinations, Defendant was found fit to proceed and his motion to proceed pro se was granted. Defendant was given until April 22, 2015 to file his Omnibus Motion.
Defendant filed his Omnibus Motion on April 22, 2014.
As periods of delay resulting from pre-trial motions are excludable, this adjournment is not charged to the People.
May 19, 2015 to July 6, 2015: 0 days chargeable.
On May 19, 2015, the Penal Law § 195(05) charge was dismissed upon the motion of the People. Furthermore, Huntley, Mapp, Dunaway and Refusal hearings were ordered on the consent of the People. The case was adjourned to July 6, 2015 for a decision on the present motion.
Accordingly, because periods of delay resulting from pre-trial motions are excludable, no portion of this adjournment is chargeable to the People.
Summary:
As detailed above, a total of zero (0) days are chargeable to the People. This is less than the ninety (90) days required by CPL § 30.30(1)(b) to dismiss the accusatory instrument. Accordingly, that portion of Defendant's motion which seeks to dismiss the accusatory instrument pursuant to CPL § 30.30 is denied.
Dismissal based upon facial insufficiency: Denied.
CPL § 100.15 provides that every accusatory instrument must contain two elements: 1) an accusatory portion designating the offense charged; and 2) a factual portion containing evidentiary facts which support or tend to support the charges stated in the accusatory portion of the instrument. These facts must provide reasonable cause to believe that the defendant has committed the crime alleged in the accusatory portion of the accusatory instrument. See, People v. Dumas, 68 N.Y.2d 729 (1986).
Further, under CPL § 100.40, a misdemeanor information is facially sufficient if the non-hearsay facts stated in said information establish each and every element of the offense charged, as well as the Defendant's commission of said crime.
“A court reviewing for facial insufficiency must assume that the factual allegations contained in the Information are true and must consider all reasonable inferences that may be drawn from them.” People v. Barber, 42 Misc.3d 1225(A), 1225A (Crim. Ct. N.Y. County 2014) (internal citations omitted).
On a motion to dismiss, the court's review is limited to whether or not the People's allegations as stated in the Criminal Court information are facially sufficient. The facts alleged need only establish the existence of a prima facie case, even if those facts would not be legally sufficient to prove guilt beyond a reasonable doubt. See, People v. Jennings, 69 N.Y.2d 103, 115 (1986).
Applying these principles to the instant matter, the factual allegations contained in the information before this Court are facially sufficient.
VTL § 1192(1) provides that “[n]o person shall operate a motor vehicle while the person's ability to operate such motor vehicle is impaired by the consumption of alcohol.” The Court of Appeals has explained what impaired by the consumption of alcohol means, stating “the question in each case is whether, by voluntarily consuming alcohol, this particular defendant has actually impaired, to any extent, the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver.”People v. Cruz, 48 N.Y.2d 419, 427 (1979), appeal dismissed Cruz v. New York, 446 U.S. 901 (1980).
VTL § 1192(3) provides that “[n]o person shall operate a motor vehicle while in an intoxicated condition.” “[I]ntoxication is a greater degree of impairment which is reached when the driver has voluntarily consumed alcohol to the extent that he is incapable of employing the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver.” People v. Cruz at 428.
In the present case, the complaint complies with CPL § 100.15 as to form. It specifies the name of the court, the title of the action, is subscribed and verified by the complainant, and includes both an accusatory part and a factual part.
The factual portion of the complaint states, in substance, that the complainant, Police Officer Cleeford Louissaint (“Louissaint”), observed Defendant operating a vehicle and roll through a stop sign, and drive over the crosswalk and partially over the sidewalk while making a turn. Officer Louissaint further states that he observed that Defendant had watery eyes, had the odor of an alcoholic beverage on his breath, and was unsteady on his feet. Louissaint also affirms that he observed Police Officer Renaud Richardson advise the Defendant of his rights regarding the taking of a test to determine blood alcohol content and Defendant refused to take such test.
The above stated facts, if true, provide reasonable cause to believe that Defendant violated VTL §§ 1192(3) and 1192(1). Therefore, that portion of Defendant's motion which seeks to dismiss the accusatory instrument for facial insufficiency is denied.
Dismissal in the interest of justice pursuant to CPL §§ 170.30(1)(g) and 170.40: Denied.
Pursuant to CPL § 170.30(1)(g), the court may, upon motion of the defendant, dismiss the accusatory instrument when such is required in furtherance of justice within the meaning of CPL § 170.40. “While the court has the discretion to dismiss an accusatory instrument in the interest of justice, that discretion is neither absolute nor uncontrolled (see, People v. Wingard, 33 N.Y.2d 192, 196 ), and is to be sparingly exercised (see, People v. Litman, 99 A.D.2d 573 ). In exercising its discretion, the court must maintain a sensitive balance between the interests of the individual and of the State (see, People v. Clayton, 41 A.D.2d 204, 208 ).” People v. Kelley, 141 A.D.2d 764, 765 (2d Dep't 1988).
CPL § 170.40 permits the dismissal of an information or any count thereof “when, even though there may be no basis for dismissal as a matter of law such dismissal is required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such accusatory instrument or count would constitute or result in injustice. In determining whether such compelling factor, consideration, or circumstance exists, the court must, to the extent applicable, examine and consider, individually and collectively, the following” factors, which are set forth in CPL § 170.40(1).
The seriousness of the offense
“[D]riving while intoxicated is not a victimless crime as the defendant would urge. Rather, it is an offense against society as a whole. This court has long recognized that [an] intoxicated person who operates an automobile on a highway is a menace to the public. He exhibits no regard for the safety of his fellow man' (People v. Ritsky, 224 App.Div. 425, 426 ). Vehicle and Traffic Law § 1192 and similar laws have been enacted because intoxicated drivers are far more likely to become involved in accidents than those who have not been drinking. In fact, alcohol is a factor in more than half of all vehicular fatalities' (L 1981, ch 910, § 1).” Kelley at 765 (brackets in original). As driving while impaired or intoxicated creates a significant risk of harm to the public, absent some extraordinary factor, dismissal in the interests of justice is not warranted for violations of VTL § 1192.
The extent of harm caused by the offense
In the present case, it is not alleged that Defendant's alleged driving while impaired or intoxicated caused physical damage to any person or property.
The evidence of guilt, whether admissible or inadmissible at trial
As noted above, there is alleged evidence that Defendant was driving while intoxicated. The arresting officer observed Defendant drive over a sidewalk while making a turn, and observed that Defendant had watery eyes, the odor of an alcoholic beverage on his breath, and was unsteady on his feet.
The history, character and condition of the defendant
Defendant has no prior criminal history in New York.
Any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant
There is no indication of such circumstance apparent in the records before the court.
The purpose and effect of imposing upon the defendant a sentence authorized for the offense
The authorized sentences for violations of VTL § 1192 are set forth in VTL § 1193. A sentencing requirement for a conviction of VTL § 1192(3) is a sentence of probation or conditional discharge, a condition of which is that the Defendant must install and maintain an ignition interlock device. See VTL §§ 1193(1)(b)(ii) and 1198(2). With regards to legislative intent for VTL § 1198, the legislature found that “[t]here is a need to reduce the incidence of drivers on the highways and roads of this state who, because of their consumption of alcohol, pose a danger to the health and safety of others.” Laws 1988, ch 713, §§ 1 and 4, eff April 1, 1989. Accordingly, the authorized sentence serves an important role in preserving the safety of the public.
The impact of a dismissal on the safety or welfare of the community
As set forth above, driving while intoxicated creates a substantial risk of harm to the public. In the present case, Defendant failed to complete the court ordered alcohol and substance abuse screening. Moreover, while the court recognizes that the case is at the pre-trial stage, dismissal of the case could result in serious harm to the public if Defendant will drive under the influence of alcohol, or not be subjected to the prescribed penalty or penalties—deterrents—if the allegations of the accusatory instrument can be proven at trial. Defendant has not asserted that he will not drive while impaired or intoxicated in the future. Accordingly, there exists a risk of harm to the public if the case is dismissed.
The impact of a dismissal upon the confidence of the public in the criminal justice system
Dismissal of the accusatory instrument in this case would likely have a deleterious effect on public confidence in the criminal justice system in that, lacking any compelling reason to do so, dismissing the case against Suriel would show disparate and arbitrary treatment vis-a-vis other similarly situated defendants.
Where the court deems it appropriate, the attitude of the complainant or victim with respect to the motion
The court record contains no indication of the complainant's attitude with respect to the present motion.
Any other relevant fact indicating that a judgment of conviction would serve no useful purpose
Defendant has failed to provide any facts indicating that a judgment of conviction would serve no useful purpose.
Taking into account all of the above factors, this court does not find any “compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such accusatory instrument or count would constitute or result in injustice.” Accordingly, the court is presented with no grounds upon which to exercise discretion to dismiss this matter, and, accordingly, that portion of Defendant's motion which seeks dismissal in the interest of justice is denied.
Dismissal for lack of subject matter jurisdiction: Denied.
Defendant seeks dismissal for lack of subject matter jurisdiction. However, pursuant to CPL § 10.30(2), local criminal courts have preliminary jurisdiction of all offenses subject to divestiture thereof in any particular case by the superior courts and their grand juries. Pursuant to CPL § 10.30(1), local criminal courts have trial jurisdiction of all offenses other than felonies. This court, the New York City Criminal Court, is a local criminal court. See CPL § 10.10(3)(b). “Offense' means conduct for which a sentence to a term of imprisonment or to a fine is provided by any law of this state or by any law, local law or ordinance of a political subdivision of this state, or by any order, rule or regulation of any governmental instrumentality authorized by law to adopt the same .” PL § 10.00(1).
Defendant is charged with violating VTL § 1192(3), a misdemeanor offense which carries a maximum sentence of imprisonment up to one (1) year and a minimum fine of $500; and VTL § 1192(1), a traffic infraction with a minimum fine of $300 and maximum sentence of imprisonment up to fifteen days. Accordingly, the offenses Defendant is charged with are within the jurisdiction of the court.
Defendant asserts that the information should be dismissed, invoking Article 1, Section 14 of the New York State Constitution. No explanation is provided as to the basis for defendant's invocation of that article, which simply incorporates the laws which were in force as of April 20, 1777, into the laws of the State.
Dismissal due to the loss of rights without due process of law: Denied.
Defendant seeks dismissal due to the loss of his “rights” without due process of law. However, Defendant fails to indicate how he was deprived of any rights without due process of law, or even what rights he has lost.
Declaring VTL §§ 1192(1) and 1192(3) unconstitutional: Denied.
Defendant seeks to have VTL §§ 1192(1) and 1192(3) declared unconstitutional. However, in People v. Cruz, 48 N.Y.2d 419 (1979), appeal dismissed, Cruz v. New York, 446 U.S. 901 (1980), the Court of Appeals considered the issue in a case whose facts closely resemble the case at bar. In Cruz, supra, as in the present case, the defendant was charged with violating VTL §§ 1192(1) and 1192(3) after refusing to take a chemical test to determine blood alcohol content.
The Court of Appeals stated, “the prohibition against driving while the ability to do so is impaired by alcohol (Vehicle and Traffic Law, § 1192, subd 1 ) is not a vague and indefinite concept.” People v. Cruz, 48 N.Y.2d 419, 426 (1979). Regarding VTL § 1192(3), the court stated, “A layman, including the defendant and those charged with administering the law, should be able to determine whether the defendant's consumption of alcohol has rendered him incapable of operating a motor vehicle as he should. Thus, even when no chemical test has been made of the driver's blood alcohol content, the statute provides reasonable warning of what is prohibited and sufficient standards for adjudication.” Cruz at 428.
The Court of Appeals concluded by stating “[w]e therefore conclude that subdivisions 1 and 3 of section 1192 of the Vehicle and Traffic Law are not unconstitutionally vague or indefinite when applied to a case where an analysis of the driver's blood alcohol content is unavailable.” Cruz at 428.
Accordingly, the statutes at issue are not unconstitutional.
Ordering any pre-trial hearings be held at least twenty (20) days before trial: Denied.
Defendant seeks an order directing all pre-trial hearings to be held at least twenty (20) days before trial. In support of this application, Defendant cites People v. Sanders, 31 N.Y.2d 463 (1973). However, Sanders, supra, does not stand for the position advocated by defendant. The essence of Sanders is, “the defendant shall not only proceed with the requisite reasonable diligence' in making his pretrial suppression motion (CPL 710.40, subd. 1 ; former Code Crim. Pro., § 813–d, subd. 1) but shall also make his request for a transcript of the minutes of any pretrial hearing prior to its conclusion.” People v. Sanders, 31 N.Y.2d 463, 467 (1973).
Defendant has failed to provide any substantive support for his request for an order directing that all hearings be held at least twenty (20) days before trial. Accordingly, that portion of Defendant's motion is denied.
Preventing ADAs Wash and Junig from prosecuting the case: Denied .
Defendant seeks to prevent ADAs Jessica Wash, Esq. (“ADA Wash”) and Jon Junig, Esq. (“ADA Junig”), from proceeding in this or any other matters against Defendant. Defendant points the court to 22 NYCRR § 1200.0, the Rules of Professional Conduct for attorneys, in support of the proposition that neither of these ADAs may continue in the proceeding. However, Defendant fails to point to any specific facts or conduct which would warrant removing either attorney from the case.
Defendant further seeks to rely upon Grucci v. Grucci, 20 NY3d 893 (2012) for the proposition that ADA Wash should not be able to proceed in the case. However, Grucci, supra, revolved around the admissibility of certain evidence in a malicious prosecution case. Defendant seems to be implying that prosecution by the District Attorney's office is malicious. However, no evidence has been submitted to support any such conclusion.
Accordingly, this portion of Defendant's motion is denied.
Defendant's request for an audibility hearing: Reserved for the trial court.
Defendant seeks a hearing in advance of the trial regarding the audibility of any recordings. “An audibility hearing addresses the preliminary issue of whether the utterances on a tape are sufficiently clear and understandable to be admissible into evidence at trial, a determination within the sound discretion of the court.” People v. Rivera, 257 A.D.2d 172, 176 (1st Dep't 1999)aff'd by People v. Rivera, 94 N.Y.2d 908 (2000). “The credibility of the recording, its accuracy and completeness are left to the Trial Judge to determine as preliminary questions of fact (United States v. Bryant, 480 F.2d 785 ; United States v. McKeever, 169 F.Supp. 426 ).” People v. Gucciardo, 77 Misc.2d 1049, 1050 (Sup.Ct., Kings County 1974). Accordingly, the issue of an audibility hearing is respectfully reserved for the trial court.
Defendant's request for transcripts of all audio and/or video recordings of him: Denied in part
Defendant seeks transcripts of any and all audio and/or video recordings the People may introduce at trial.
“[T]here is no general constitutional right to discovery in criminal cases or administrative proceedings. Such matters are regulated by statute or rule.” Miller v. Schwartz, 72 N.Y.2d 869, 870, rearg. denied, 72 N.Y.2d 953 (1988). Pursuant to CPL § 240. 20(1)(g), “the prosecutor shall disclose to the defendant and make available for inspection, photographing, copying or testing any tapes or other electronic recordings which the prosecutor intends to introduce at trial, irrespective of whether such recording was made during the course of the criminal transaction.” The Criminal Procedure Law does not require the People to create a new record. Therefore, the People are not required to create transcripts of audio or video recordings. However, to the extent that such transcripts exist or will exist prior to trial, they should be made available to the Defendant for inspection and copying. See People v. Robles, 29 A.D.2d 751, 752 (1st Dep't 1968).
Sandoval/Ventimiglia issues: Reserved for the trial court
Defendant seeks to prevent the People from introducing evidence of any prior crimes, bad acts, arrests, criminal prosecutions or uncharged crimes pursuant to People v. Sandoval, 34 N.Y.2d 371 (1974). This issue is respectfully reserved for the trial court.
Prohibit the People from cross-examining Defendant: Denied.
Defendant seeks an order prohibiting the People from questioning him at trial, even if he should choose to testify. “Every criminal defendant is privileged to testify in his own defense, or to refuse to do so.” Harris v. New York, 401 U.S. 222, 225 (1971). Pursuant to CPL § 60.15(1), “both the people and the defendant may as a matter of right call and examine witnesses, and each party may cross-examine every witness called by the other party.” However, “[t]he nature and extent of cross-examination have always been subject to the sound discretion of the Trial Judge.” People v. Sandoval, 34 N.Y.2d 371, 374 (1974) (internal citations omitted). Accordingly, subject to any limitations imposed by the trial judge, Defendant's motion to prohibit the People from cross-examining him is denied.
Preclusion of statements and identification: Denied.
Defendant moves, pursuant to CPL § 710.30(3), to preclude the People from offering at trial any statements made by or identification of Defendant. CPL § 710.30(1) provides “[w]henever the people intend to offer at a trial (a) evidence of a statement made by a defendant to a public servant, which statement if involuntarily made would render the evidence thereof suppressible upon motion pursuant to subdivision three of section 710. 20, or (b) testimony regarding an observation of the defendant either at the time or place of the commission of the offense or upon some other occasion relevant to the case, to be given by a witness who has previously identified him as such, they must serve upon the defendant a notice of such intention, specifying the evidence intended to be offered.” Pursuant to CPL § 710.30(2), “[s]uch notice must be served within fifteen days after arraignment and before trial.” CPL § 710.30(3) provides “[i]n the absence of service of notice upon a defendant as prescribed in this section, no evidence of a kind specified in subdivision one may be received against him upon trial unless he has, despite the lack of such notice, moved to suppress such evidence and such motion has been denied and the evidence thereby rendered admissible as prescribed in subdivision two of section 710.70.”
In the present case, the People served statement notice at arraignment. Accordingly, as to those statements covered by such notice, Defendant's motion is denied.
The People have not served identification notice. Pursuant to CPL § 710.30(2), “[s]uch notice must be served within fifteen days after arraignment and before trial.” As such, any identification of Defendant should not be admissible. However, an identification by a police officer at a place and time sufficiently connected and contemporaneous to the arrest itself as to constitute the ordinary and proper completion of an integral police procedure does not constitute a previous identification within the meaning of the statute. See People v. Suleman, 262 A.D.2d 337 (2d Dep't), appeal denied People v. Suleman, 94 N.Y.2d 885 (2000) ; see also People v. Wharton, 74 N.Y.2d 921 (1989). Accordingly, testimony of observations by officers connected with Defendant's arrest is not hindered by lack of identification notice.
Suppression of evidence: Huntley, Mapp, Dunaway and Refusal hearings were previously ordered; disposition reserved for the trial court.
Defendant seeks to suppress all evidence to be used against him. This portion of the motion is effectively granted insofar as Huntley, Mapp, Dunaway and Refusal hearings have already been ordered on May 19, 2015. Disposition of same is respectfully reserved for the trial court.
Defendant's request for Brady materials: Granted.
Defendant moves for an order requiring the People to provide Defendant with any evidence favorable to the defendant. The U.S. Supreme Court has held “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87 (1963). Accordingly, the People have a duty to disclose exculpatory evidence, and this branch of Defendant's motion should be granted.
Demand for discovery and a bill of particulars: Fulfilled by People's VDF.
Defendant's demand for discovery and a bill of particulars has been responded to through the People's response and VDF.
Defendant's request to make further motions: Denied.
Defendant seeks to reserve the right to make further and additional motions. However, pursuant to CPL § 255. 20(1), “all pre-trial motions shall be served or filed within forty-five days after arraignment and before commencement of trial, or within such additional time as the court may fix upon application of the defendant made prior to entry of judgment.” CPL § 255. 20(3) requires the court to entertain and decide on the merits any “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 subdivision one of this section or included within the single set of motion papers as required by subdivision two. Any other pre-trial motion made after the forty-five day period may be summarily denied, but the court, in the interest of justice, and for good cause shown, may, in its discretion, at any time before sentence, entertain and dispose of the motion on the merits.” Defendant has not presented any grounds that could invoke the provisions enabling the late filing of pre-trial motions. Accordingly, any further motions by Defendant would be unauthorized. His ungrounded request to make further motions is, thus, denied.
People's motion to preclude psychiatric evidence: Granted.
The People move, pursuant to CPL § 250.10(2), to preclude Defendant from introducing at trial evidence of mental disease or defect in connection with the affirmative defense of lack of criminal responsibility by reason of mental disease or defect, the affirmative defense of extreme emotional disturbance, or any other defense. CPL § 250.10(2) provides, “[p]sychiatric evidence is not admissible upon a trial unless the defendant serves upon the people and files with the court a written notice of his intention to present psychiatric evidence. Such notice must be served and filed before trial and not more than thirty days after entry of the plea of not guilty to the indictment. [Despite reference to “indictment” in the preceding statutory sentence, CPL § 340.30 applies this statute to “prosecution of an information in a local criminal court,” as well.] In the interest of justice and for good cause shown, however, the court may permit such service and filing to be made at any later time prior to the close of the evidence.” The People affirm that more than thirty (30) days have passed since the Defendant pled not guilty. Indeed, arraignment in this case occurred as far back as October 2014. Defendant has not served notice of any intention to present psychiatric evidence, nor has he requested permission to do so at this late date. Accordingly, the People's motion is granted.
CONCLUSION
Accordingly, for the reasons stated herein, it is hereby
ORDERED that Defendant's motion to dismiss the accusatory instrument, in whole or in part, and to dismiss this action, is denied; and it is further
ORDERED that Defendant's motion for renewal of his prior motions is denied; and it is further
ORDERED that Defendant's motion to declare VTL §§ 1192(1) and 1192(3) unconstitutional is denied; and it is further
ORDERED that Defendant's motion to have all pre-trial hearings held at least twenty (20) days in advance of the trial is denied; and it is further
ORDERED that Defendant's motion to prevent Assistant District Attorneys Jessica Wash, Esq., and John Junig, Esq., from proceeding in this case is denied; and it is further
ORDERED that Defendant's request for an audibility hearing is reserved for the trial court; and it is further
ORDERED that Defendant's motion requesting transcripts of any audio and/or video recordings the People may use at trial is granted to the extent such transcripts exist or come to exist, and the People shall make such available to the Defendant for inspection and copying; and the motion is denied to the extent it would seek to require the People to have such recordings transcribed; and it is further
ORDERED that Defendant's motion to preclude the use at trial of evidence of Defendant's prior criminal history, bad acts or uncharged crimes is reserved for the trial court; and it is further
ORDERED that Defendant's motion to prohibit the People from cross-examining him is denied, subject however to any limitations imposed by the trial court; and it is further
ORDERED that Defendant's motion pursuant to CPL § 710.30(3) to preclude the use at trial of statements made by Defendant is denied as to the statements noticed at arraignment and is otherwise granted; and it is further
ORDERED that defendant's motion pursuant to CPL § 710.30(3) to preclude testimony regarding witness observations of Defendant is denied as to testimony by police officers connected with Defendant's arrest and is otherwise granted; and it is further
ORDERED that Defendant's motion for suppression of other evidence against him is granted to the extent of the hearings ordered on the record on May 19, 2014, and is otherwise denied; and it is further
ORDERED that Defendant's motion seeking disclosure of any evidence known to the People that is favorable to the Defendant is granted; and it is further
ORDERED that Defendant's request for discovery and a bill of particulars is denied as moot in view of the People's response and VDF, without prejudice to Defendant's right to seek supplemental discovery and the People's corresponding right to object to same when appropriate; and it is further
ORDERED that Defendant's request for permission to make further motions is denied, subject to Defendant's rights under CPL § 255. 20(3) to move for further leave upon good cause shown; and it is further
ORDERED that the People's motion to preclude Defendant from introducing at trial evidence of mental disease or defect in connection with any defense is granted; and it is further
ORDERED that the People's request for information regarding physical or mental examinations, etc. (CPL § 240.30(1) ), is granted; and it is further
ORDERED that the People's request for notice of Alibi (CPL § 250. 20) is granted.
This constitutes the decision and order of the Court.