People v Walton

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People v Walton 2012 NY Slip Op 33958(U) September 12, 2012 Supreme Court, Kings County Docket Number: 02459/12 Judge: Martin P. Murphy Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK KINGS COUNTY: PART 40 -------------------------------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK Decision and Order Indictment 02459112 -against- Gangs' Case SAMUEL WALTON Defendant --------------------------------------------------------------------x Omnibus Decision JUSTICE MARTIN P. MURPHY The People have designated this matter as a Gangs Case. The defendant is charged with murder in the second degree and two counts of criminal possession of a weapon in the second degree. It is alleged that at approximately 10:00 P.M on July 4, 2009 in the vicinity of 160 Rockaway Avenue in Kings County, the defendant walked passed Nakie Rason Hector-Bowser, the decedent, on the sidewalk. Upon passing one another, the defendant and Mr. Hector-Bowser got into a verbal altercation. The defendant then displayed a handgun, pointed it at the deceased, and fired several shots, striking the decedent several times. The decedent was pronounced dead from these gunshot wounds at Brookdale Hospital on July 5, 2009 After a review of the defendant's omnibus motion papers, filed on or about June 8, 2012 and the People's response, filed on or about July 9, 2012, as well as the official court file and all of the prior court proceedings, the omnibus motion is decided as follows : Bill of Particulars The defendant's motion for a bill ofparticulars, pursuant to CPL 200.95 is GRANTED to the extent of the People's answer as contained in the section entitled "Bill ofParticulars" as well as the Voluntary Disclosure Form (VDF) that has been previously provided to defendant . The defendant is granted leave to renew the motion with regard to any item not so provided. Upon renewal of the motion, the defendant must (1) specify the particular item(s) of information which the People have not disclosed; (2) demonstrate that such information is relevant and applicable to the case; and (3) specify the provision of law or authority requiring disclosure of the information. Discovery l. Defendant's Demand for Discovery, pursuant to CPL 240.20, is GRANTED to the extent [* 2] ( that the People are directed to forthwith disclose to the defendant and make available for inspection, photographing, copying or testing, the following property: A. Any written, recorded or oral statement of the defendant, and of a co-defendant to be tried jointly, made, other than in the course of the criminal transaction, to a public servant engaged in law enforcement activity or to a person then acting under his direction or in cooperation with him; B. Any transcript of testimony relating to the criminal action or proceeding pending against the defendant, given by the defendant, or by a co-defendant to be tried jointly, before any grand j ury; C. 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; D. Any photograph or drawing relating to the criminal action or proceeding which was made or completed by 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; E. Any photograph, photocopy or other reproduction made by or at the direction of a police officer, peace officer or prosecutor of any property prior to its release pursuant to the provisions of section 450. I 0 of the penal law, irrespective of whether the People intend to introduce at trial the property, photograph, photocopy or other reproduction. F. Any other property obtained from defendant; or a co-defendant to be tried jointly. G. 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; H. Anything required to be disclosed, prior to trial, to the defendant by the prosecutor, pursuant to the constitution of this state or of the United States; [* 3] ( I. The approximate date, time and place of the offense charged and of defendant 's arrest. J. In any prosecution under penal law section 156.05 or 156.10, the time, place and manner of notice given pursuant to subdivision six of section 156. OOof such law. K. In any prosecution commenced in a manner set forth in this subdivision alleging a violation of the vehicle and traffic law, in addition to any material required to be disclosed pursuant to this article, any other provision of law, or the constitution of this state or of the United States, any written report or document, or portion thereof, concerning a physical examination, a scientific test or experiment, including the most recent record of inspection, or calibration or repair of machines or instruments utilized to perform such scientific tests or experiments and the certification certificate, if any, held by the operator of the machine or instrument, which tests or examinations were 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. 2. The prosecutor shall make a diligent, good faith effort to ascertain the existence of demanded property and to cause such property to be made available for discovery where it exists but is not within the prosecutor's possession , custody or control; provided, that the prosecutor shall not be required to obtain by subpoena duces tecum demanded material which the defendant may thereby obtain. Defendant 's motion to compel discovery pursuant to CPL 240.40 is at present premature, 3. since defendant has concurrently served the People with a demand for discovery pursuant to CPL 240.20. Following the People' s compliance with defendant 's demand ,the defendant is granted leave to renew his motion with regard to any item of discovery he believes he is entitled to and has not been provided. At that time, the defendant must (1) specify the particular item(s) of discovery which the People have not disclosed, (2) demonstrate that such item or information is relevant and applicable to the case, and (3) specify the provision of law or authority requiring its disclosure. Huntlev Hearine Defendant seeks to preclude any and all statement evidence for of which he indicates he was provided notice, pursuant to CPL 710.30 (1) (a). Defendant maintains that any statements made by him were involuntarily made in violation of his constitutional rights. [* 4] ( The People indicate that they do not intend to offer any statements that may have been made by defendant following his arrest on their direct case. Accordingly, a hearing pursuant to People v Huntley, 15 NY2d 72 [1965] . is DENIED by this court as unnecessary. Motion to Inspect Grand Jurv Minutes and Dismiss tlze Indictment The defendant 's motion to inspect the grand jury minutes is Granted. The court has reviewed the minutes in camera and issued a decision, dated September 12, 2012. Upon inspection, the motion to dismiss the indictment or reduce a charged offense in the indictment is DENIED. The minutes reveal that a quorum of the grand jurors was present during the presentation of evidence and at that time the Assistant District Attorney properly instructed the Grand Jury on the law. The instructions were not defective as a matter of law and the evidence before the Grand Jury was sufficient to support each and every count in the indictment. Tlze People's Bradv Obligation The People have acknowledged their continuing obligation to provide exculpatory information to the defendant. Brady v Maryland,373 US 83 [1963]. Witnesses' Statements As to any prior statements of the People's witnesses, it is ordered that they be provided to defendant to the extent and at the time prescribed by law pursuant to CPL 240.44 (1) and 240.45 (1) (a). People v Rosario, 9 NY2d 286 [1961]. Sandoval/Prior, Uncharged Acts Pursuant to CPL 240 43, immediately prior to the commencement of jury selection, the prosecutor is directed to notify defendant of all specific instances of any prior uncharged criminal, vicious or immoral conduct of which the prosecutor intends to use at trial for purposes of impeaching the defendant's credibility. A Sandoval hearing is GRANTED and referred to the trial court. People v Sandoval, 34 NY2d 371(1974]. Motion to Preclude Identification Testimony The People have previously given notice of their intent to introduce identification evidence of the defendant. Defendant has moved pursuant to CPL 710.20 (6), to preclude the People from introducing into evidence at trial potential testimony regarding an observation of the defendant either at the time or place of the alleged commission of the offense or upon some other occasion as suggestive. In the alternative, defendant requests a hearing pursuant to Wade v United States, [* 5] ( 388 us 218 [1967]. The People in their response indicate they will consent to a Wadel Rodriguez hearing. Accordingly, this court GRANTS a Wade/Rodriguez hearing to determine the admissibility of any identification evidence. Should the hearing court determine that the identification procedures utilized by the authorities were unduly suggestive or tainted, any decision as to whether there should be an independent source hearing is left to the sound discretion of the hearing court. Suppression ofPlivsical Evidence The People have indicated that they do not intend to offer in their direct case at trial any physical evidence seized from the defendant in this case. Accordingly, a hearing pursuant to Mapp v Ohio, 367 US 643 [1961] is DENIED as unnecessary. Reciprocal Discovery The People's motion for reciprocal discovery is GRANTED as to the material specified in CPL 240.30 as is the People's request for a demand of alibi notice pursuant to CPL 250.20. Reservation o(Furtlier Motions Further motions may be made pursuant to CPL 255.20 upon good cause shown. The foregoing constitutes the decision and order of the court. Dated: Brooklyn, New York September 12, 2012 MARTIN P. MURPHY, J. S. C.

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