People v Singh

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[*1] People v Singh 2006 NY Slip Op 51988(U) [13 Misc 3d 1225(A)] Decided on October 19, 2006 County Court, Suffolk County Hinrichs, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 19, 2006
County Court, Suffolk County

The People of the State of New York,

against

Parmjit Singh, Defendant



932B-2006



Hon. Thomas J. Spota

Suffolk County District Attorney

Dari R. Schwartz, Esq.

Assistant District Attorney

Criminal Courts Building

200 Center Drive

Riverhead, New York 11901-3303

Francis P. Murphy, Esq.

Attorney for Defendant

32 Bohack Ct.

Sayville, New York 11782

C. Randall Hinrichs, J.

Defendant has moved by way of an Omnibus Motion for various forms of relief, including; 1) an order granting discovery pursuant to Criminal Procedure Law (CPL) Article 240; 2) an order granting a Bill of Particulars pursuant to CPL Article 200; 3) Pre-trial Huntley, Sandoval and Ventimiglia/Molineux hearings; 4) dismissal of count Three for violation of the Statute of Limitations; 5) inspection by the Court of the Grand Jury minutes; 6) severance from the co-defendant, and 7) release of a portion of the Grand Jury minutes.

In arriving at the instant decision, the Court has received and considered the defendant's motion the People's Affidavit in Response, defendant's Reply, the People's Sur-Reply and defendant's Response to Sur-Reply.

Defendant's Reply, in addition to the relief sought in the motion, also moves to dismiss the Hindering Prosecution charge under count Three upon the ground that one may not be charged for hindering a prosecution for which that person is also charged as principal. Defendant also moves to preclude the People from introducing any statements made by defendant which were not included in the CPL § 710.30 Notice. The People aver that all statements by defendant [*2]which the People intend to offer are within the CPL § 710.30 Notice. The Court will be conducting a Huntley hearing, as ruled below. Defendant's motion to preclude is denied at this time, with leave to renew should testimony at the Huntley hearing reveal statements made by defendant to law enforcement which are not contained in the CPL § 710.30 Notice.

The People have attached to their Affidavit in Response a response to Defendant's demand for Discovery and Bill of Particulars which includes a response to the request for a Bill of Particulars. The Court anticipates that discovery will continue to proceed voluntarily by both sides. The Court will entertain a motion to compel discovery, if necessary, only as to items properly specified and not included in voluntary discovery.

Defendant urges that count Three of the indictment must be dismissed for violation of the statute of limitations. Count Three charges defendant with Hindering Prosecution in the First Degree by alleging that defendant "on or about late December 1990 and continuing through March 2006, in Suffolk County rendered criminal assistance to Kairual N. Abdul, who committed a Class A Felony, knowing or believing that Kairual N. Abdul had engaged in conduct constituting a Class A Felony."

CPL § 30.10 provides that a prosecution for a felony, other than a Class A felony, must be commenced within five years. However, case law makes clear that where a crime is charged as a continuing crime, then the statute of limitations runs from termination date of the crime and not the starting date. People v Eastern Ambulance Service, Inc., 106 AD2d 867, 483 NYS2d 508 (1984.) See also, People v DeBeer, 4 Misc 3d 466, 778 NYS2d 678 (County Ct, Ontario 2004.) The court in DeBeer, under facts similar to those here, held that Hindering Prosecution could be charged as a continuing crime and therefore denied an application to dismiss as time barred under CPL § 30.10. The Court finds that count Three of the instant indictment is properly charged as a continuing crime, in that defendant is charged with disposing of the victim's remains and continuously concealing the victim's death until March 2006. Accordingly, defendant's application to dismiss count Three as time barred pursuant to CPL § 30.10 is denied.

Turning to defendant's argument that one may not be charged for hindering a prosecution for which that person is also charged as principal, the Court also finds this argument unavailing. Defendant relies primarily on People v Mercedes, 121 Misc 2d 419, 467 NYS2d 973 (Supreme Ct, New York County 1983) and People v Tusa, 137 AD2d 151, 528 NYS2d 392 (2nd Dept, 1988.)

Penal Law (PL) § 205.65, Hindering Prosecution in the First Degree reads as follows: "A person is guilty of hindering prosecution in the first degree when he renders criminal assistance to a person who has committed a class A felony, knowing or believing that such person has engaged in conduct constituting a class A felony."

Mercedes, id, held that Hindering Prosecution is inapplicable where defendant is charged as principal since one may not be charged with rendering assistance to oneself. In the instant charge, as quoted above, defendant is specifically accused under the hindering count with rendering criminal assistance, not to himself, but rather to the co-defendant Abdul. The Court, therefore, finds that this case is distinguishable from Mercedes, in that defendant is not charged here with rendering assistance to himself, but to co-defendant Abdul. Accordingly, defendant's application to dismiss the Hindering Prosecution count on this basis, is denied. The People further submit that they are permitted to present alternate theories of prosecution and need not choose the theory they elect to submit to the jury until the conclusion of the trial. The Court is [*3]not called upon to rule in this regard at this time. Questions relative to which charges may be submitted to the jury will be resolved at the trial.

The People have consented to a review of the Grand Jury minutes by the Court. The Court has examined the minutes of the Grand Jury presentation in the instant matter at the request of the defendant, and it is the determination of the Court that the evidence presented in this proceeding is legally sufficient to support the charges contained in the indictment. Moreover, the Grand Jury was adequately instructed on the law, and the proceeding otherwise conforms to the requirements of Article 190 of the Criminal Procedure Law.

The Court notes that the Grand Jury was properly charged with respect to count Two of the indictment charging Murder in the Second Degree, in violation of PL § 125.25(4), that criminal liability may be based on a failure to perform a legally imposed duty. The Grand Jury was further charged that parents have a duty to provide their children with adequate medical care and to protect their children from physical harm. See PL § 15.00(3) and People v Steinberg,79 NY2d 673 (1992.) The Court is aware of the Court of Appeals holding in People v Feingold, 2006 NY Slip Op 5233, 2006 Lexis 1830 (2006) that depraved indifference is a culpable mental state. In so holding, Feingold also held "the mens rea of depraved indifference to human life can, like any other mens rea, be proved by circumstantial evidence." Id, at page 8. This court holds that where, as here, a defendant is charged under PL § 125.25(4) which permits, as stated above, criminal liability based upon inaction, as well as action, then, under Feingold, depraved indifference may be established by showing that inaction circumstantially.

Here, in addition to medical testimony as to multiple injuries in various stages of healing on the bones of the victim, the Grand Jury heard testimony of the contents of two written statements allegedly made by the defendant to law enforcement. Defendant states in the first statement that in November of 1986 co-defendant Abdul "gave birth to our daughter, Jennifer." The two statements detail defendant's personal knowledge of incidents of physical violence allegedly perpetrated on the victim by the co-defendant, the victim's mother, including breaking the victim's arm and burning the victim's back in several places with a metal spoon. In the first statement the defendant claims that on the evening of the victim's death the victim was dead upon his arrival home. In the second statement the defendant states he was not telling the truth and describes watching as the co-defendant shakes the victim and pushes her head onto the floor. Defendant then says that he went to pick up a friend and came back a half -hour to 45 minutes later and Jennifer was dead. The Court finds that the evidence presented provided ample evidence from which the Grand Jury could infer the necessary mens rea of depraved indifference to human life. In the Court's view these facts are consistent with the following language regarding depraved indifference from People v Gonzalez, 1 NY3d 464 (2004) which the Court cited in Feingold, id:

". . . it involves a killing in which the defendant does not have a conscious objective to cause death but instead is recklessly indifferent, depravedly so, to whether death occurs."

The People have consented to Huntley and Sandoval hearings. The People indicate that they will bring a separate written Molineux application. The Court will reserve decision on Molineux issues pending the People's written papers and defendant's response. The Court will conduct a Sandoval hearing prior to trial, or in conjunction with a Molineux hearing, if appropriate.

The Court will also reserve decision on the questions of severance from the co-defendant [*4]and the People's cross motion for a dual jury trial. A number of issues must be resolved before the Court can rule on severance. First, the admissibility of the extensive statements alleged to have been made by both defendants to law enforcement must be considered by this Court in determining whether to conduct one, two or dual trials. The Court would also take into consideration whether any proposed Molineux evidence, if admissible, factors into the question of severance. Finally, the People's Affidavit in Response references various child protective agencies having different testimony to offer as to each defendant. The Court would need to have clarified the nature and extent of this proposed testimony prior to a determination as to whether a dual jury trial would be viable option.

Defendant requests that the Court direct release of the Grand Jury testimony of the Suffolk County Medical Examiner. Defendant contends that the autopsy report provided to the defense is so inadequate in the instant case that the Grand Jury testimony is, in essence, a medical report within the meaning of CPL § 240.20(1)(c.) The People oppose the request on the ground that the minutes are not a report or document as contemplated by CPL § 240.20(1)(c.) The People aver that they have provided all notes and reports in connection with the Medical Examiner's opinion to the defense already. The People submit that since they have provided all notes from which the Medical Examiner drew his opinion, that they should not also be directed to provide the Medical Examiner's Grand Jury testimony.

Initially, the Court notes that the instant request for the Medical Examiner's Grand Jury testimony is distinguishable from the co-defendant's request for release of those portions of the Grand Jury minutes which deal with scientific and/or medical testimony. The co-defendant's request was specifically requested pursuant to CPL § 210.30(3.) The Court denied that request, in a written decision dated July 28, 2006, ruling that release of the requested minutes was unnecessary to assist the Court in making its determination as to the sufficiency of the evidence and legal instructions before the Grand Jury. The issue currently before the Court is a different one and the Court finds, for the reasons which follow, that under the unique facts and circumstances presented in the instant case, release of the requested minutes is appropriate pursuant to discovery rules in order to allow for the expeditious administration of this case to trial.

CPL § 240.20(1)(c) provides that, upon demand by a defendant, the People must provide to defendant, among other enumerated items, the following:

"Any written report or document, or portion thereof, concerning a physical or mental examination, or scientific test or experiment, relating to the criminal action or proceeding which was made by, or at the request or direction of a public servant engaged in law enforcement activity, or which was made by a person whom the prosecutor intends to call as a witness at trial, or which the people intend to introduce at trial."

The murder charge in the indictment alleges that defendant caused the death of the victim "on or about late December 1990." The skeletal remains of the victim were discovered in 1996. The Medical Examiner's investigation into the cause of death included consultation with a forensic anthropologist. The People's theory, as relayed above, that defendant is criminally liable for murder for failing to perform a legally imposed duty (i.e., to protect his child from harm), will necessarily rest largely on the testimony of the Medical Examiner regarding the cause of death of the victim. The "Summary Report of Autopsy Findings" prepared by the Suffolk County Medical Examiner (a copy of which is attached to defendant's instant motion as Exhibit A) is a [*5]single page document stating the cause of death to be Child Abuse Syndrome and the manner of death to be Homicide. No other information is contained within the one page summary. The Court of Appeals, in People v Copicotto, 50 NY2d 222 (1980), made the following observation:

"The criminal discovery procedure embodied in article 240, adopted in substance from Rule 16 of the Federal Rules of Criminal Procedure, evinces a legislative determination that the trial of a criminal charge should not be a sporting event where each side remains ignorant of facts in the hands of the adversary until events unfold at trial. Broader pretrial discovery enables the defendant to make a more informed plea decision, minimizes the tactical and often unfair advantage to one side, and increases to some degree the opportunity for an accurate determination of guilt or innocence. In short, pretrial discovery by the defense and prosecution contributes substantially to the fair and effective administration of justice." Id, at 226 (Internal citations omitted.)

While the Court observes that the requested Grand Jury testimony does not fit neatly within the definition of a "written report," the Court finds under the unique circumstances of the instant case that fundamental fairness requires that the defense be provided with a copy of the requested minutes. In order for the defense to adequately prepare for trial, and to be adequately apprised of the prosecution theory of the cause of death in this case, release of the Grand Jury minutes is mandated.

CPL § 210.30(3) provides that prior to the release of any portion of the Grand Jury minutes that the District Attorney be given an opportunity to be present argument to the Court that release would not be in the public interest. Inasmuch as the People have already clearly and articulately put forth their arguments in opposition to the Grand Jury minutes in their Affidavit in Response, the Court finds that further argument would be unnecessary. Accordingly, the Court Orders that a copy of the Grand Jury testimony of Medical Examiner Charles Wetli shall be provided by the People to the defendant.

This memorandum shall constitute the decision and Order of the Court.

_________________________________

J.C.C. [*6]

5

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