People v Morris

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People v Morris 2012 NY Slip Op 32805(U) November 14, 2012 County Court, Wayne County Docket Number: 12-98 Judge: Dennis M. Kehoe Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] STATE OF NEW YORK COUNTY COURT COUNTY OF WAYNE PEOPLE OF THE STATE OF NEW YORK DECISION AND ORDER -vsJONATHAN R. MORRIS, Ind. No. 12-98 Defendant Appearances: Wayne County District Attorney Jacqueline A. McCormick, Esq., of Counsel For the People Marc Infantino, Esq. For the Defendant The Defendant Jonathan Morris has been indicted on one (1) count of Burglary in the Second Degre·e; three (3) counts of Petit Larceny; and two (2) counts Grand Larceny in the Fourth Degree. The Defendant by his attorney has filed an omnibus motion, seeking dismissal of the Indictment, and requesting inspection of the Grand Jury minutes, as well as discovery pursuant to Brady, Sandoval, Ventimeglia and Molineux. A hearing has been scheduled to determine the existence of probable cause for the Defendant's arrest, together with the admissibility of statements and -1- [* 2] physical evidence. The Pea pi" have consented to provide discovery prior to trial, in accordance with applicable statutes and case law. A separate Decision and Order has been issued by this Court regarding its inspection of the Grand Jury minutes. The Court has found that the evidence presented to the Grand Jury was legally sufficient, that the District Attorney properly instructed the Grand Jury, and that the proceedings, having conformed with statutory requirements, were not defective. The Defendant has raised two issues regarding the validity of the Indictment which will be addressed specifically. First, the Defendant maintains that Count One of the Indictment is insufficient it fails to state that the Defendant's On its face, in that entry into the subject premises was "unlawful", as required by the statutory definition of Burglary in the Second Degree. The Court acknowledges in the original Indictment. that the word "unlawfully" How"ver, does not appear the People have moved to amend Count One to include the necessary language. Counsel for the Defendant argues that the People are not authorized to request such an amendment, as the failure to include unlawfulness as an element in the Indictment -2- [* 3] constitutes a violation of both jurisdictional and statutory pleading requirements, and is therefore not subject to amendment under CPL §200.70. However, the Court of Appeals disagreed with this argument in People v Wright, 67 NY2d 749 (1986), a case in which the Defendant had been charged with Burglary in the Third Degree by a count which inadvertently omitted the word "unlawful". The court held that, since the indictment specifically charged the Defendant with burglary "in violation of Penal Law §140.20", the count sufficiently incorporated the statutory elements of the offense, including "unlawfulness". Therefore, the Indictment was not jurisdictionally defective. This Court's inspection of the Grand Jury minutes confirms that there was sufficient evidence provided by the testimony of the witnesses to establish the unlawfulness of the Defendant's entry into the subject premises. Also, the Grand Jury was given adequate instructions by the District Attorney, advising them that the entry of the Defendant must be unlawful, in order to constitute a burglary. The Defendant also argues that CPL §200.70 prohibits the People's proposed amendment to the Indictment -3- He maintains that the omission [* 4] canstitutes a fatal vialatian .of pleading requirements as set farth in CPL §200.05. Hawever, the Caurt cancludes that the additian .of the ward "unlawfully" ta Caunt One daes nat change the theary .of the prasecutian, nar daes it prejudice the Defendant an the merits. Therefare, the Defendant's matian ta dismiss the Indictment is denied, and the Peaple's matian ta amend the Indictment is granted. The Defendant has alsa argued, in regard ta the twa caunts charging Grand Larceny in the Faurth De!lree, that the evidence befare the Grand Jury as ta the value .of the stalen property shauld be determined ta be legally insufficient, in the absence .of swarn testimany by an appraiser. It is clear from a review .of the Grand Jury minutes that the .only testimany regarding value was .offered by the respective .owners .of the property that was allegedly stalen. Hawever, the Defendant's reliance an the decisian .of the Caurt .of Appeals in People v Lapez, 79 NY2d 402 (1992), which he cites in suppart .of his argument that an appraiser's swarn testimany befare the Grand Jury is necessary ta establish value, is misplaced. In Lapez, the .only praaf .of value befare the Grand Jury was a farm affidavit signed by the .owner, which cantained a canclusary statement as ta alleged value .of a vehicle, which was faund by the Caurt ta be inadequate. Hawever, Lapez -4- [* 5] does not mandate the production of sworn testimony by an appraiser Lay testimony is admissible, provided the witness sets forth a basis of knowledge for his testimony. In the instant matter, the owners described the various items in detail, providing a sufficient basis of knowledge to support their statements as to market value of the property, at least for purposes of the Grand Jury proceeding. Therefore, the Court finds that the evidence before the Grand Jury was legally sufficient to support each and every count of the Indictment. All other matters raised by the Defendant must await resolution at a hearing or production at time of trial. This Decision constitutes the Order of Dated: November 14, 2012 Lyons, New York Court. / i i <:: , H e D nis . Kehoe County Court Judge -5-

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