Opinion
Indictment No. 72339-22/002
02-02-2023
THE PEOPLE OF THE STATE OF NEW YORK v. ANTHONY GOOD WINE, Defendant.
Unpublished Opinion
ROBERT J. PRISCO, J.
DECISION & ORDER
ROBERT J. PRISCO Judge.
Defendant ANTHONY GOODWINE is charged by Indictment Number 72339-22/002 with one count of Burglary in the Second Degree pursuant to Penal Law [PL] § 140.25 (2) [Count One], one count of Grand Larceny in the Third Degree pursuant to PL § 155.35 (1) [Count Two], and one count of Criminal Possession of Stolen Property in the Third Degree pursuant to PL § 165.50 [Count Three]. The charges pertain to Defendant allegedly aiding, abetting, and acting in concert with another person in unlawfully entering a dwelling located at 35 Echo Lane, in the Town of Mamaroneck, and his alleged theft of property which had a value in excess of three-thousand dollars ($3,000.00). The offenses are alleged to have occurred at approximately 7:10 p.m. on February 26, 2022.
On October 7, 2022, Defendant was arraigned by this Court on the charges contained in Indictment Number 72339-22/002. Attached to the indictment are the People's Demand for a Notice of Alibi pursuant to Criminal Procedure Law [CPL] § 250.20 and two (2) CPL § 710.30 (1) (a) Notices regarding the People's intent to offer evidence of statements allegedly made by Defendant to a member of the Westchester County Police Department.
The two (2) CPL § 710.30 (1) (a) notices pertain to electronically recorded oral statements that were allegedly made by Defendant in the vicinity of Nardozzi Place, in the Town of Mamaroneck, at approximately 8:00 p.m., on February 26, 2022.
During the court appearance on October 7, 2022, the People served and filed a Certificate of Compliance pursuant to CPL § 245.50 (1), with an attached "Discovery Disclosure Index" that identifies the items and materials that have reportedly been disclosed or provided to defense counsel. Also attached to the Certificate of Compliance are Discovery Package Transmittal Notices from the Westchester County District Attorney's Office which delineate the dates, times and methods of such disclosures. Within the People's Certificate of Compliance is a "Statement of Readiness," wherein the People state that they "confirm and announce their readiness for trial on all counts charged." Although the grand jury minutes were still outstanding, the People also verbally confirmed their readiness for trial when inquired of by this Court.
On November 17, 2022, the People served and filed a Notice of Motion for Buccal Swab, an Affirmation in Support, and a Memorandum of Law seeking an Order "requiring the defendant... to permit the taking of DNA samples from his body via a buccal cell swab," pursuant to CPL § 245.40 (1) (e).
On December 6, 2022, the Court received Defendant's "Notice of Pre-Trial Motions Pursuant to CPL Article 255" (hereinafter "Notice of Motion"), an Attorney's Affirmation and a Memorandum of Law, seeking various forms of judicial intervention and relief.
On December 14, 2022, the Court received Defendant's Affirmation in Opposition to the People's Order to Show Cause for the taking of buccal cell samples.
On December 27, 2022, this Court received the People's Affirmation in Opposition and Memorandum of Law in response to Defendant's motion for omnibus relief. Attached to the People's Affirmation is Exhibit 1, which consists of Discovery Package Transmittal Notices from the Westchester County District Attorney's Office.
The Court is also in receipt of an unredacted certified copy of the stenographic transcript of the Grand Jury proceeding dated September 26, 2022, an unredacted certified copy of the stenographic transcript of the instructions on the law dated September 28, 2022, and a flash drive which contains copies of the Grand Jury exhibits that were received in evidence. The Court has further been provided with the Search Warrant Applications and Orders dated February 8, February 27, and May 6, 2022.
On December 27, 2022, the People also served and filed a Supplemental Certificate of Compliance, which includes a "Statement of Readiness," wherein "[t]he People confirm and announce their readiness for trial on all counts charged in this matter." Attached to the Supplemental Certificate of Compliance is a copy of the People's Discovery Disclosure Index and Discovery Package Transmittal Notices from the Westchester County District Attorney's Office which identify the additional items and information that have been disclosed to Defendant and delineate the dates, times and methods of such disclosures.
After consideration of the above referenced submissions and the aforementioned unredacted certified stenographic transcripts, the Court decides Defendant's Motion as follows:
1. MOTION TO DISMISS INDICTMENT NUMBER 72339-22/002 FOR FACIAL INSUFFICIENCY.
Citing CPL § 210.25 (1), Defendant moves to dismiss the indictment on the ground that "it does not substantially conform to the requirements stated in [CPL] Section 200.50 (7) (a)...[as] [t]here is no plain and concise factual statement which asserts facts supporting every element of the offense(s) charged and/or the defendant's commission thereof with sufficient precision to clearly apprise the defendant of the conduct which is the subject of the accusation" (see Point A, Page 2, of Defendant's Notice of Motion and Point A, Page 1, of Defendant's Memorandum of Law).
In response, the People assert that Defendant's motion should be denied as the instant indictment provides facts that support every element of the offenses charged and "does so in the language of the statute" (see Point I, Pages 5-6, of the People's Memorandum of Law).
"The essential purpose of a criminal indictment is to provide a defendant 'with fair notice of the accusations made against him, so that he will be. able to prepare a defense'" (People v Winston, 205 A.D.3d 32, 38 [1st Dept 2022], quoting People v Iannone, 45 N.Y.2d 589, 594 [1978]; see People v Morris, 61 N.Y.2d 290, 293 [1984]; People v Williams, 132 A.D.3d 785, 785-786 [2d Dept 2015], Iv. denied26 N.Y.3d 1151 [2016], recon, denied!! N.Y.3d 1009 [2016]; People v Atta, 126 A.D.3d 713, 715 [2d Dept 2015], Iv. denied 25 N.Y.3d 1159 [2015]). "An indictment must contain '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 to clearly apprise [him] of the conduct which is the subject of the accusation'" (People v Nunez-Garcia, 178 A.D.3d 1087, 1088 [2d Dept 2019], Iv. denied 35 N.Y.3d 943 [2020]), citing CPL § 200.50 (7) (a); see People v Grega, 72 N.Y.2d 489, 498 [1988]; People v Morris, 61 N.Y.2d at 293; People v Iannone, 45 N.Y.2d at 598; People v Rice, 172 A.D.3d 1616, 1617 [3d Dept 2019]; People v Singleton, 130 A.D.2d 598, 599 [2d Dept 1987], aff'd 72 N.Y.2d 845 [1988]).
Here, each of the three (3) counts contained in Indictment Number 72339-22/002 contains a statement that satisfies the requirements of CPL § 200.50 (7) (a), the cases cited above, and further provides the date on which the conduct is alleged to have occurred (see CPL § 200.50 (6); People v Henry, 183 A.D.3d 607, 608 [2d Dept 2020]; People v Atta, 126 A.D.3d at 715]). Accordingly, Defendant's motion to dismiss Indictment Number 72339-22/002 for facial insufficiency is denied.
2. MOTION FOR RELEASE OF THE GRAND JURY MINUTES TO DEFENDANT, INSPECTION THEREOF, AND DISMISSAL OR REDUCTION OF THE CHARGES CONTAINED IN INDICTMENT NUMBER 72339-22/002 DUE TO THE LEGAL INSUFFICIENCY OF THE EVIDENCE PRESENTED AND THE INSTRUCTIONS PROVIDED.
Citing CPL Article 210, Defendant moves "for inspection of the Grand Jury minutes by the Court and the defendant, and subsequent to that inspection, for the dismissal of the indictment or reduction of the counts thereof, on the grounds that the evidence before the Grand Jury was not legally sufficient, and that the Grand Jurors were not properly instructed on the applicable law, and on lesser included offenses" (see Point B, Pages 2-3, of Defendant's Notice of Motion and Point B, Pages 2-4, of Defendant's Memorandum of Law). Specifically, Defendant asserts that the People "put forth no evidence of [Defendant] aiding anyone in committing a Burglary," and "failed...to establish the alleged property exceeded [$3,000.00]" to support the charges of Grand Larceny in the Third Degree and Criminal Possession of Stolen Property in the Third Degree (see Point A, Pages 1-2, of Defendant's Memorandum of Law).
While defense counsel contends that "the grand jury was tainted in that they were informed that Mr. Goodwine was identified by his Fingerprint Repository sheet...[which] would lead the grand jury to believe that [Defendant] has a criminal history and therefore prejudice them against Mr. Goodwine" (see Point B, Page 3, of Defendant's Memorandum of Law), upon review of the Grand Jury transcript no such identification was made. Further, the only mention of criminal history was in relation to co-defendant Felix Bruno, after which a cautionary instruction was read to the grand jurors by the People (see Pages 25-28 of Grand Jury Transcript dated September 26, 2022).
In their response, the People consent to an in-camera inspection of the Grand Jury minutes by the Court (see Point I, Page 1, of the People's Memorandum of Law), contend that the indictment is supported by legally sufficient evidence (see Point I, Page 2, of the People's Memorandum of Law), and assert that "Defendant has failed to meet his high burden of showing the existence of any error in the grand jury proceeding which rendered it defective" (see Point I, Page 4, of the People's Memorandum of Law).
As to the value of the stolen items, the People contend that "the victim testified in the Grand Jury that he inherited the Omega watch from his father and that it was an antique" and "explained that he had gotten the watch refurbished; due to the value of rose gold, the value of the watch was approximately $10,000" (see Point I, Page 3, of the People's Memorandum of Law). The People further contend that "the other items stolen were described, including a diamond tennis bracelet and a diamond solitaire necklace" and "[p]hotographs of the items were admitted in evidence" . (Id.). Therefore, the People aver that "[h]aving heard the testimony and having seen photographic evidence of the items, it is within the ken of the average juror that these items easily surpassed the [$3,000.00] threshold" (Id.).
Initially, regarding Defendant's request for the Grand Jury minutes in their entirety, CPL. § 245.20 (1) (b) provides for automatic discovery of "[a]ll transcripts of the testimony of a person who has testified before a grand jury" (emphasis added). Similarly, CPL § 210.30 (3), which addresses motions to inspect grand jury minutes, speaks only to the release of "grand jury testimony (emphasis added)." Accordingly, as there exists no statutory authority for the release to Defendant of those portions of the Grand Jury minutes that constitute colloquy or instructions, and as the People have complied with the discovery mandate of CPL § 245.20 (1) (b) by providing the defendant with the transcript of the grand jury testimony on November 17, 2022 (see Page 5 of the People's Affirmation in Opposition), the defendant's request for the Grand Jury minutes in their entirety is denied.
The Court has conducted an in-camera review of the entirety of the Grand Jury proceedings, having examined the unredacted certified copies of the stenographic transcripts of the Grand Jury proceeding dated September 26, 2022 and the instructions on the law dated September 28, 2022.
On September 26, 2022, prior to the commencement of the given sworn testimony, the People specifically inquired of and confirmed with the foreperson that twenty (20) grand jurors were present. Prior to instructing the grand jurors on the applicable law on September 28, 2022, the People confirmed with the foreperson that those twenty (20) grand jurors were present throughout the presentation of the case. These measures by the People satisfy this Court that the twenty (20) grand jurors who deliberated and voted on the charges contained in Indictment Number 72339-22/002 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 Edwards, 36 N.Y.3d 946, 947 [2020]; People v Deleon, 34 N.Y.3d 965, 966 [2019]; People v Bello, 92 N.Y.2d 523, 525 [1998]; People v Booker, 164 A.D.3d 819, 820 [2d Dept 2018]; People v Pino, 162 A.D.3d 910, 910-911 [2d Dept 2018]; People v Hulsen, 150A.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 Deleon, 34 N.Y.3d at 966; People v Mills, 1 N.Y.3d at 274; People v Booker, 164 A.D.3d at 820; People v Pino, 162 A.D.3d at 911; People v Arcila, 152 A.D.3d 783, 784 [2d Dept 2017], Iv. denied 30 N.Y.3d 978 [2017]; People v Hulsen, 150 A.D.3d at 1262; People v Franov, 146 A.D.3d 978, 979 [2d Dept 2017]). "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 Gaworecki, 37 N.Y.3d 225, 230 [2021], quoting People v Grant, 17 N.Y.3d 613, 616 [2011]; see People v Mills, 1 N.Y.3d at 274; People v Bello, 92 N.Y.2d at 526; see People v Holloway, 210 A.D.3d 1007,1008 [2d Dept 2022]; People v Castro, 202 A.D.3d 815, 816 [2d Dept 2022]; People v Booker, 164 A.D.3d at 820). 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 Booker, 164 A.D.3d at 821; People v Pino, 162 A.D.3d at 911; People v Arcila, 152 A.D.3d at 784).
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 charge of Burglary in the Second Degree as set forth in Count One of Indictment Number 72339-22/002.
However, as to the charges of Grand Larceny in the Third Degree and Criminal Possession of Stolen Property in the Third Degree, as set forth in Counts Two and Three, respectively, the People failed to prove that the value of the property that was allegedly stolen and possessed by Defendant exceeds three-thousand dollars ($3,000.00).
Pursuant to PL § 155.20 (1), "value means the market value of the property at the time and place of the crime, or if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the crime." "Any person who testifies as to the value of an item 'must provide a basis of knowledge for his [or her] statement of value before it can be accepted as legally sufficient evidence of such value'" (People v Sutherland, 102 A.D.3d 897, 898 [2d Dept 2013], quoting People v Lopez, 79 N.Y.2d402,404 [1992]; see People v Piasta, 207 A.D.3d 1054, 1058 [4th Dept 2022], Iv. denied 38 N.Y.3d 1190 [2022]; People v Box, 181 A.D.3d 1238, 1241 [4th Dept 2020], Iv. denied 35 N.Y.3d 1025 [2020]; People v Slack, 137 A.D.3d 1568, 1569 [4th Dept 2016], Iv. denied 27 N.Y.3d 1139 [2016]). "'Conclusory statements and rough estimates of value' that are unsupported by a basis of knowledge are insufficient" (People v Sutherland, 102 A.D.3d at 899, quoting People v Loomis, 56 A.D.3d 1046, 1047 [3d Dept 2008]; see People v Box, 181 A.D.3d at 1241; People v Slack, 137 A.D.3d at 1569; People v Walker, 119 A.D.3d 1402, 1402-1403 [4th Dept 2014]; People v Pallagi, 91 A.D.3d 1266, 1269 [4th Dept 2012]).
Here, although the homeowner testified regarding the items that were missing and estimated that the value of the watch was "around ten thousand dollars" and the value of the necklace was "fifteen hundred [dollars]" (see Page 8, Lines 19-25 and Page 9, Lines 1-12, of Grand Jury Transcript dated September 26, 2022), he failed to provide a basis of knowledge for his statements and there was no other evidence as to the value of the stolen property (see People v Sutherland, 102 A.D.3d at 899; People v Rivera, 180 A.D.3d 939, 940 [2d Dept 2020]). Thus, the People failed to meet their burden of proving the required value element of Grand Larceny in the Third Degree (PL § 155.35) and Criminal Possession of Stolen Property in the Third Degree (PL § 165.50), to wit, a property value in excess of three-thousand dollars ($3,000.00) at the time of the alleged crime.
The homeowner alleged that the stolen items included various pieces of jewelry such as an Omega watch, "solitaire diamond necklace," "diamond tennis bracelet," and an earring (see Pages 8-11, of Grand Jury Transcript dated September 26, 2022).
Notwithstanding the above, the evidence presented to the Grand Jury did establish the crimes of Petit Larceny (PL § 155.25) and Criminal Possession of Stolen Property in the Fifth Degree (PL § 165.40), as value is not ah element thereof.
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 Jimenez, 39 N.Y.3d 74 [2022]; People v Palma, 208 A.D.3d 801, 802 [2d Dept 2022]; People v Sealy, 181 A.D.3d 893, 894 [2d Dept 2020], Iv. denied 35 N.Y.3d 1070 [2020]; People v Arevalo, 172 A.D.3d 891, 892 [2d Dept 2019]; People v Williams, 171 A.D.3d 804, 805 [2d Dept 2019]). '"The exceptional remedy of dismissal of an indictment is warranted only where prosecutorial misconduct, fraudulent conduct or errors created a possibility of prejudice" (People v Palma, 208 A.D.3d at 802, quoting People v Addimando, 197 A.D.3d 106, 121 [2d Dept 2021]; see People v Huston, 88 N.Y.2d 400,409 [1996]; People v Sealy, 181 A.D.3d at 894; 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]). Here, the Court finds that no such misconduct, conduct or errors occurred.
Further, 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 at 394; 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 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).
After an in-camera review of the unredacted certified copies of the stenographic transcripts of the Grand Jury proceeding and the instructions on the law provided therein, 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 charge of Burglary in the Second Degree is denied and his motion to dismiss or reduce the charges of Grand Larceny in the Third Degree and Criminal Possession of Stolen Property in the Third Degree is granted to the extent that such counts are reduced to Petit Larceny and Criminal Possession of Stolen Property in the Fifth Degree, respectively.
3. MOTION TO SUPPRESS STATEMENTS.
Citing CPL Article 710, the Fifth, Sixth and Fourteenth Amendments of the United States Constitution and Article 1, Section 6, of the New York State Constitution, Defendant moves to suppress "the statements which the People seek to offer" on the grounds that such statements were "the product of in-custody questioning, were involuntary, and were the product of an illegal detention or arrest" (see Point C, Page 3, of Defendant's Notice of Motion and Point C, Pages 4-5, of Defendant's Memorandum of Law). In the alternative, Defendant moves for a "Huntley/Dunaway hearing" (see Point C, Page 3, of Defendant's Notice of Motion and Page 4 of Attorney's Affirmation).
In response, the People "consent to a Huntley hearing, at which the People will meet their initial burden of proving, beyond a reasonable doubt, that defendant's statements were voluntary" (see Point II, Page 7, of the People's Memorandum of Law). The People further "move to withdraw the second CPL 710.30 notice served upon defendant providing notice of a statement made by him on February 26, 2022 at approximately 8:00 p.m. in a police car at Nardozzi Place" (Id. at Page 9).
As the People have consented to a hearing to address Defendant's claims, 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 first CPL § 710.30 (1) (a) noticed statement.
However, as the People have withdrawn the second CPL § 710.30 (1) (a) Notice, Defendant's motion to suppress such is denied as moot.
4. MOTION TO SUPPRESS PHYSICAL EVIDENCE.
Citing CPL Article 710, the Fourth, Fifth, Sixth and Fourteenth Amendments of the United States Constitution, and Article I, Section 12, of the New York State Constitution, Defendant moves to suppress and prohibit "the use at trial or any hearing on this matter of all evidence, including all physical evidence, and any statements in that such evidence and property was unlawfully seized and was the fruit of an unlawful arrest, as defendant was arrested [without] probable cause" (see Point D, Page 3, of Defendant's Notice of Motion). Specifically, Defendant contends that "[t]he police had neither a warrant nor probable cause for the search of Mr. Bruno's vehicle nor the area of the car recently vacated by Mr. Goodwine," that "there was no probable cause to give cnase to the vehicle driven that night, nor to pull the car over," and "neither gentleman gave permission to search the car nor their person" (see Point D, Page 6, of Defendant's Memorandum of Law). Defendant further contends that "the sock was [not] abandoned by the vehicle occupants" since "the items discarded by Mr. Goodwine or Mr. Bruno were discarded as the result of an unlawful chase by the police" (Id. at Page 8). In the alternative, Defendant seeks "a hearing to determine whether defendant was arrested with probable case and the admissibility of such evidence" (see Point D, Page 3, of Defendant's Notice of Motion).
Defendant further contends that, "[a]s the initial search was improper...[the] subsequent seizure of the sock containing the alteged items...should be thrown out" and "[a]ny conduct which flowed from these improper police activity including the seizure of the defendant's personal affects" should be suppressed (see Point D, Page 7, of Defendant's Memorandum of Law).
In response, the People contend that Defendant's motion should be denied because he has failed to allege sufficient sworn allegations of fact (see Point III, Page 11, of the People's Memorandum of Law). The People also contend that "[t]o the extent defendant is seeking to suppress the earring that was found in plain view on the front seat of his co-defendant's Honda, defendant has no standing [as he] was a mere passenger in the lawfully stopped vehicle and thus, has no legitimate expectation of privacy" (Id. at Pages 11-12). Even if Defendant did have standing, the People aver that "the earring from the abandoned car" could be lawfully recovered under the automobile exception or plain view doctrine (Id. at Page 12). Finally, the People argue that Defendant lacks standing to challenge "the sock filled with jewelry," since such items were abandoned and that the abandonment "was not precipitated by any unlawful police conduct" (Id. at Page 13).
"A defendant abandons property when he voluntarily relinquishes possession in a calculated decision in response to police conduct" (People v Whitfield, 186 A.D.3d 1414, 1415 [2d Dept 2020], Iv denied 36 N.Y.3d 977 [2020]), quoting People v Oliver, 39 A.D.3d 880, 880 [2d Dept 2007], Iv. dismissed 9 N.Y.3d 868 [2007]; see People v Ramirez-Portoreal, 88 N.Y.2d 99, 110 [1996], and "[w]here a defendant abandons property, there is no search or seizure" (People v Whitfield, 186 A.D.3d at 1415, quoting People v Burkett, 98 A.D.3d 746, 747 [2d Dept 2012], Iv. denied 20 N.Y.3d 985 [2012]; see People v Kluge, 180 A.D.3d 705, 707 [2d Dept 2020]; People v Hogya, 80 A.D.2d 621, 621 [2d Dept 1981], appeal dismissed 56 N.Y.2d 602 [1982]). However, "if the abandonment is coerced or precipitated by unlawful police activity, then the seized property may be suppressed because it constitutes fruit of the poisonous tree" (People v Rice, 204 A.D.3d 834, 837 [2d Dept 2022], quoting People v Ramirez-Portoreal, 88 N.Y.2d at 110; see Matter of Francis O., 208 A.D.3d 51, 57 [1st Dept 2022]; People v Kluge, 180 A.D.3d at 707).
Accordingly, upon the issues raised in Defendant's and the People's papers, Defendant's motion for suppression of physical evidence is granted to the extent that hearings pursuant to Mapp v Ohio, 367 U.S. 643 [1961], and Dunaway v New York, 442 U.S. 200 [1979], will be conducted to determine the legality of the evidentiary recovery/seizure and its admissibility at trial.
5. MOTION FOR A FRYE HEARING.
"Based on a review of the provided Discovery the defense believes that the people intend to introduce DNA evidence based on testing conducted through the STRMix DNA testing program" and therefore "requests a Frye hearing on the reliability, validity and general acceptance of the program, process, statistical calculations, and the resulting profiles" (emphasis added) (see Point E, Page 3, of Defendant's Notice of Motion and Point E, Pages 8-41, of Defendant's Memorandum of Law). Specifically, Defendant asserts that "STRMix has never been accepted in a New York Court, so it is by its nature novel scientific evidence" (see Point E, Page 31, of Defendant's Memorandum of Law).
In response, the People aver that it is well-established that DNA evidence has been widely accepted by the scientific community and that "Defendant's contention that STRmix specifically has never been accepted in a New York Court...is inaccurate" (see Point IV, Page 14, of the People's Memorandum of Law). The People further contend that Defendant's motion should be denied as premature since "there is no admissible evidence pertaining to DNA until a buccal swab from the defendant is submitted for comparison, which has not been completed or even ordered" (Id. at Page 15).
Although the People filed a motion seeking to permit the taking of DNA from Defendant by way of a buccal swab, as a sample has not yet been collected, Defendant's motion is denied as premature. However, if the motion is granted, and the People indicate that they intend to offer DNA evidence at trial, Defendant can renew his motion to the Court.
The parties are invited to review the following cases regarding STRmix: People v Bullard-Daniel, 203 A.D.3d 1630 [4th Dept 2022]; Iv. Denied, 38 N.Y.3d 1069 [2022]; People v Wakefield, 38 N.Y.3d 367 n 11 [2022], reargument denied, 38 N.Y.3d 1121 [2022]; United States v Gissantaner, 990 F.3d 457 [6th Cir. 2021].
6. MOTION FOR PRECLUSION OF DEFENDANT'S PRIOR CRIMES OR BAD ACTS; ASSOCIATED 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 moves for a "pre-trial hearing to determine the admissibility at trial for any purpose of any and all alleged criminal convictions and/or criminal, vicious or immoral acts of defendant," and requests that the People notify him of "all specific instances of defendant's alleged prior uncharged criminal, vicious or immoral conduct of which the prosecution has knowledge, and which the District Attorney intends to use at trial" (see Point F, Page 3, of Defendant's Notice of Motion and Point F, Pages 41-43, 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 16, 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 [pursuant to People v Molineux, 168 NY 264 [1901]], the People will inform defense counsel and the Court and request a hearing before introducing such Molineux evidence" (Id.).
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 his acts of misconduct and criminality which the prosecution intends to use at trial for impeaching his credibility or as substantive proof of any material issue in the case, nor 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 his . 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. MOTION FOR DISCOVERY COMPLIANCE AND TO DEEM THE CERTIFICATE OF COMPLIANCE INVALID AND THE STATEMENT OF READINESS ILLUSORY.
Citing CPL § 245.20, Defendant moves for the People "to provide all requisite and outstanding discovery" and contends that the People have not fully complied with their discovery' obligations and, thus, he requests that the Court deem the Certificate of Compliance dated October 7, 2022 invalid and the Statement of Readiness illusory (see Point G, Page 4, of Defendant's Notice of Motion and Point G, Pages 43-50, of Defendant's Memorandum of Law). Specifically, Defendant avers that the People have failed to provide discovery regarding a statement made by co-defendant Felix Bruno, "forensic analysis and testing," and the Grand Jury minutes (see Point G, Pages 44-46, of Defendant's Memorandum of Law). Defendant further argues that the People have failed to make a "diligent, good faith effort to make this material available to the defense" (Id. at Page 44).
In response, the People assert that "defendant's motion to declare the People's COC and SOR illusory should be summarily denied" (see Point VI, Page 23, of the People's Memorandum of Law). The People have also provided the Court with descriptions of the additional materials and information that have purportedly been provided to Defendant and the dates upon which such disclosure allegedly took place pursuant to the People's continuing duty to do so pursuant to CPL § 245.60 (Id. at Pages 17-21).
Co-defendant's recorded statement
The People contend that, as soon as they read Defendant's motion and found out that codefendant Bruno's recorded statement was not sent to Defendant, the "same was immediately delivered via the Portal" (see Point VI, Page 17, of the People's Memorandum of Law). Therefore, the People contend that "[t]his was nothing more than an inadvertent oversight in a case with two defendants and voluminous discovery" (Id. at Pages 17-18). The People further aver that although the Discovery Disclosure Index attached to the Certificate of Compliance alerted Defendant to the existence of such statement, Defendant did not raise this deficiency promptly (People v Marin, 74 Misc.3d 1037,1048 [Crim Ct, Bronx County 2022]), but instead waited almost two months to alert the People that they were missing this information (Id. at Page 18). Finally, the People state there is no prejudice to Defendant as such was not noticed and will not be used at trial (Id.).
The People believed such notice had been sent on March 10, 2022, as such was sent to co-defendant Bruno (see Point VI, Page 18, of the People's Memorandum of Law).
Lab materials
The People assert that, despite Defendant's assertion that "no expert is listed" on the People's Discovery Disclosure Index, Joseph Phillips, the forensic analyst in this case, is listed under "Section C," which is entitled "Name and adequate contact information for non-law enforcement witnesses and others with relevant information" (see Point VI, Page 18, of the People's Memorandum of Law). The People further assert that "Mr. Phillips's CV, proficiency exams, statements of qualifications and l(k) information were provided to defendant via the Portal on October 5, 2022" (Id. at Page 19). Additionally, the People contend that no publications exist written by Mr. Phillips or other analysts at the lab (Id.).
The People submit that, while all of Mr. Phillips exams were sent to Defendant, he has not worked at the lab long enough to have proficiency exams for "the past ten years" (see Point VI, Page 19, Footnote 5, of the People's Memorandum of Law).
As to materials pertaining to Lynn Stout {see Point G, Page 44, of Defendant's Memorandum of Law), the People contend that she is not the analyst for this case (see Point VI, Page 19, of the People's Memorandum of Law).
As to the remainder of the items sought by Defendant, the People submit that "the demands are either for items that were...already provided (e.g. 'lab notes,' 'all STRMix runs'); are from a different case...; do not exist (e.g. '[c]alculations or codes used in programs to create statistical analysis, including...information pertaining to the FBI Popstats that is used for these calculations') or are for items that are either not considered part of automatic discovery or are proprietary (e.g. '[a]ny and all source codes for kits used in this case')" (see Point VI, Page 19, of the People's Memorandum of Law). Finally, the People contend that "[i]n all other instances, the demands are simply too vague and/or broad for Lab personnel to decipher exactly what defendant is demanding (e.g. 'quality assurance tests and results')" (Id.).
The People state that, "[a]ccording to Senior Forensic Scientist Jennifer Reilly, the Lab does not use FBI Popstats" (see Point VI, Page 19, Footnote 6, of the People's Memorandum of Law).
The People indicate that, "[w]ith respect to defendant's demand for the Lab's internal validation for STRmix...the Lab has provided it to the People for provision to defendant via the Portal" (see Point VI, Page 19, Footnote 7, of the People's Memorandum of Law). The People further contend that "the Lab has provided [the] STRmix Implementation Report, as well as another document for provision to defendant that explains the company's conditions for provision of the STRmix Materials and/or the Source Code, also demanded by defendant" (Id.) However, the People contend that "STRmix considers the source codes proprietary, privileged, confidential and secret intellectual property belonging to the company" (Id.).
Grand Jury minutes
Regarding the grand jury minutes, the People indicate that such were "received and immediately sent" to Defendant on November 17, 2022 (see Point VI, Page 20, of the People's Memorandum of Law). Further, the People contend that when they filed their Certificate of Compliance on October 7, 2022, and announced their readiness, the defendant was aware that the Grand Jury minutes were outstanding (Id.). Finally, the People assert that the Grand Jury minutes were provided to Defendant "41 days after his arraignment" and, therefore, "were disclosed in a timely manner [pursuant to CPL §§ 245.10 (1) (a) (i) and 245.20 (1) (b)]" (Id.).
Pursuant to CPL § 245.20 (1), the People must automatically disclose to defendant "all items and information that relate to the subject matter of the case and are in the possession, custody or control of the prosecution or persons under the prosecution's direction or control" (see People v Sime, 16 Misc.3d 1107, 1111 956, 959 [Crim Ct, Kings County 2022]; People v Martinez, 75 Misc.3d 1212(A) [Crim Ct, NY County 2022]; People v Darren, 75 Misc.3d 1208(A) [Crim Ct, NY County 2022]; People v Aquino, 74 Misc.3d 1147, 1152 [Sup Ct, NY County 2022]; People v Rodriguez, 13 Misc.3d 411,413 [Sup Ct, Queens County 2021]) and the statute sets forth a non-exhaustive list of items and information that must be disclosed to the defendant as part of the People's initial discovery obligation (see People v Deas, 75 Misc.3d 190, 193 [Sup Ct, Westchester County 2022]; People v Rodriguez, 73 Misc.3d at 413; People v Perez, 73 Misc.3d 171, 173 [Sup Ct, Queens County 2021]; People v Soto, 72 Misc.3d 1153, 1155 [Crim Ct, NY County 2021]). CPL § 245.20 (2) further requires the People to "make a diligent, good faith effort to ascertain the existence of [such] material or information," and where it exists, to make it available for discovery, even if the material is not within their possession, custody, or control (see People v Martinez, 75 Misc.3d 1212(A); People v Darren, 75 Misc.3d 1208(A); People v Cajilima, 75 Misc.3d 438, 440 [Sup Ct, Nassau County 2022]; People v Williams, 73 Misc.3d 1091, 1103-1104 [Sup Ct, Kings County 2021]; People v Perez, 73 Misc.3d at 174).
However, notwithstanding the mandates of CPL § 245.20 (1) and (2), "[n]owhere within CPL article 245.. .is there a requirement that the People disclose every discovery item under CPL 245.20 (1) prior to the valid filing of a certificate of compliance. On the contrary, CPL article 245...present[s] a theme emphasizing the importance of good faith efforts by the People, and reasonableness under the circumstances, as it relates to discovery compliance" (People v Bruni, 71 Misc.3d 913, 917 [County Ct, Albany County 2021]; see People v Leonardo, 15 Misc.3d 1237(A) [Crim Ct, Queens County 2022]; People v Pierna, 74 Misc.3d 1072, 1087-1088 [Crim Ct, Bronx County 2022]; People v Barralaga, 73 Misc.3d 510, 514 [Crim Ct, NY County 2021]; People v Rodriguez, 73 Misc.3d at 416-417; People v Knight, 69 Misc.3d 546, 552 [Sup Ct, Kings County 2020]; People v Erby, 68 Misc.3d 625, 633 [Sup Ct, Bronx County 2020]; People v Askin, 68 Misc.3d 372, 378-379 [County Court, Nassau County 2020]). "Article 245 requires the prosecution to proactively disclose qualifying material to defendant and file a 'certification of good faith compliance' prior, to stating their readiness for trial" (emphasis added) (People v Leonardo, 75 Misc.3d 1237(A), citing CPL § 30.30 (5) and CPL § 245.50 (3)). Consequently, numerous courts have found that belated disclosure should not invalidate a Certificate of Compliance that was made in good faith after the exercise of due diligence (People v Sime, 76 Misc.3d at 1114; People v Rodriguez, 73 Misc.3d at 416, citing People v Bruni, 71 Misc.3d at 921; People v Erby, 68 Misc.3d at 633; People v Gonzalez, 68 Misc.3d 1213[A] [Sup Ct, Kings County 2020]; People v Knight, 69 Misc.3d at 552; People v Lustig, 68 Misc.3d 234, 247 [Sup Ct, Queens County 2020]; People v Randolph, 69 Mise 3d 770, 770 [Sup Ct, Suffolk County 2020]) and a Certificate of Compliance need not be invalidated for the belated disclosure of discoverable material not previously known to the People (see People v Surgick, 73 Misc.3d 1212[A] [Albany City Ct 2021] or because of "[i]nadvertent errors or omissions" (People v Pondexter, 76 Misc.3d 349, 353 [Crim Ct, NY County 2022], citing People v Nelson, 75 Misc.3d 1203[A] [Crim Ct, NY County 2022]; People v Rodriguez, 73 Misc.3d at 416; People v Moore, 72 Misc.3d 903, 907 [Sup Ct, Kings County 2021]).
In determining the validity of the Certificate of Compliance in this case, this Court has looked at the People's efforts to meet their discovery obligations and finds them sufficient, agreeing that "good faith, due diligence, and reasonableness under the circumstances are the touchstones by which a certificate of compliance must be evaluated" (People v Marin, 74 Misc.3d at 1042, quoting People v Perez, 73 Misc.3d at 177; see People v CajiUma, 75 Misc.3d at 441; People v Henry, 74 Misc.3d 1230(A) [Sup Ct, Richmond County 2022]; People v Rodriguez, 73 Misc.3d at 417; People v Georgiopoulos, 71 Misc.3d 1215(A) [Sup Ct, Queens County 2021]). Here, the People have outlined the due diligence and good faith efforts that they have undertaken to obtain and provide the initial and additional discovery materials and information to the defendant. If there is any discoverable material or information that remains outstanding, it is not due to a lack of good faith effort or due diligence on the part of the People. To the extent that such has not yet been disclosed, should the People ascertain the existence of any of the materials and information itemized in CPL § 245.20 (1) through their mandated diligent, good faith effort to do so or otherwise, they are directed to expeditiously disclose the same upon receipt thereof. If such material or information does exist and is missing, disclosed belatedly, or destroyed, this Court will determine whether a sanction should be imposed and, if so, the appropriate remedy or sanction under the circumstances (see CPL § 245.80).
Accordingly, for the reasons set forth above, this Court finds that the People's statement of readiness was not illusory and Defendant's motion seeking invalidation of the People's Certificate of Compliance is denied.
8. MOTION FOR EXCULPATORY MATERIAL.
Defendant moves to be provided with "all information material and property of whatever kind within the knowledge, possession or control of the District Attorney or any law enforcement agency which may assist the defense or tend to exculpate defendant, or to negate any element of any crime charged against him, or to mitigate the degree of any such crime, or to reduce his criminal liability or lessen his potential punishment, or which supports the position of the defense or tends to disprove the position of the prosecution at any anticipated trial or hearing of this matter" (see Point H, Pages 4-5, of Defendant's Notice of Motion). Specifically, Defendant requests that the Court "conduct an in-camera examination of all police reports and depositions relevant to this case to decide what the defendant is entitled to" (see Point H, Page 50, of Defendant's Memorandum of Law).
In response, the People acknowledge "their continuing obligation to disclose exculpatory evidence that is within their possession pursuant to Brady v Maryland (373 U.S. 83 [1963]) and People v Fein (18 N.Y.2d 162 [1966])," and state that "[t]o the extent such material becomes known and is in possession of the people, it will be provided to the defendant" (see Point VII, Page 24, of the People's Memorandum of Law).
Defendant's request for an in-camera inspection of the People's file by the Court is denied. However, the People are respectfully reminded to remain cognizant of their discovery obligations not only as required by Brady, Giglio v United States, 405 U.S. 150 [1972], People v Geaslen, 54 N.Y.2d 510 [1981], and their respective progeny, but also as mandated by CPL Article 245. Specifically, CPL § 245.20 (1) (k) requires that the prosecutor disclose "[a]ll evidence and information, including that which is known to police or other law enforcement agencies acting on the government's behalf in this case, that tends to: (i) negate the defendant's guilt as to a charged offense; (ii) reduce the degree of or mitigate the defendant's culpability as to a charged offense; (iii) support a potential defense to a charged offense; (iv) impeach the credibility of a testifying prosecution witness; (v) undermine evidence of the defendant's identity as a perpetrator of a charged offense; (vi) provide a basis for a motion to suppress evidence; or (vii) mitigate punishment" and such disclosure must occur expeditiously upon its receipt, "whether or not such information is recorded in tangible form and irrespective of whether the prosecutor credits the information."
Pursuant to CPL § 245.20 (1) (1), the People must also disclose "a summary of all promises, rewards and inducements made to, or in favor of, persons who may be called as witnesses, as well as requests for consideration by persons who may be called as witnesses and copies of all documents relevant to a promise, reward or inducement."
To the extent that such evidence and information is known but has not yet been disclosed, the People are directed to do so expeditiously. Further, should the People ascertain the existence of Brady, Geaslen, or Giglio material, or of any of the materials and information itemized in CPL § 245.20 (1) (k) and (1), through their mandated diligent, good faith effort to do so or otherwise, they are directed to expeditiously disclose the same upon its receipt.
9. MOTION TO STRIKE ALIBI NOTICE.
Defendant moves to strike the prosecution's demand for alibi notice (see Point I, Page 5, of Defendant's Notice of Motion) on the grounds that such demand and CPL § 250.20, the statute upon which the People's notice is based, violate "defendant's right to the due process of law," and "impermissibly impinge upon his right to the effective assistance of counsel" pursuant to the Fifth, Sixth and Fourteenth Amendments of the United States Constitution and Article 1, Section 6, of the New York State Constitution (see Point I, Pages 51-52, of Defendant's Memorandum of Law).
As it is well-settled that CPL § 250.20 is constitutional (People v Dawson, 185 A.D.2d 854, 855 [2d Dept 1992], Iv. denied 80 N.Y.2d 974 [1992]; People v Cruz, 176 A.D.2d 751, 752 [2d Dept 1991], Iv. denied 79 N.Y.2d 855 [1992]; People v Gill, 164 A.D.2d 867 [2d Dept 1990], Iv. denied 76 N.Y.2d 893 [1990]; People v Peterson, 96 A.D.2d 871, 872 [2d Dept 1983]), and provides reciprocal disclosure rights to defendants (see CPL § 250.20 (2); Wardius v Oregon, 412 U.S. 470 [1973]; People v Crevelle, 125 A.D.3d 995, 996-997 [2d Dept 2015]; People v Ortiz, 133 A.D.2d 853, 854-855 [2d Dept 1987], Iv. denied 70 N.Y.2d 959 [1988]; People v Peterson, 96 A.D.2d at 872), Defendant's motion to strike the People's alibi notice is denied.
10. RESERVATION OF RIGHT TO MAKE ADDITIONAL PRE-TRIAL MOTIONS.
Defendant's request to make additional pre-trial motions (see Point J, Page 52 of Defendant's Memorandum of Law) is granted to the extent that, if sought, he 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, 972 [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.