People v Cross

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People v Cross 2017 NY Slip Op 33026(U) April 3, 2017 County Court, Westchester County Docket Number: 16-01237-01 Judge: Anne E. Minihan 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] FILED AND ENTERED COUNTY COURT: STATE OF NEW YORK COUNTY OF WESTCHESTER. 0Nll2017 ------------------------------------------------------------------)( WESTCHESTER THE PEOPLE OF THE STATE OF NEW YORK -againstDECISION & ORDER Indictment No. 16-01237-01 DUANE CROSS, Defendant. ---------------------:--.-------------------------------------------)( .MINIHAN, J. APR U3 2017 Defendant, DUANE CROSS, having been indicted on or:;~,!;>.<]>,\lt.Q.~~mber 21, 2016 for Burglary in the Third Degree (Penal Law§ 140.20); Petit Larceny (Penal IfawTSct-9~<?.~J.,and Criminal Possession ~f Stolen Property in the Fifth Degree (Penal Law § 165.40f:ii~1"fi1~~W~~il1bus motion which consists of a Notice of Motion and an Affirmation in Support. In response, the People have filed an Affirmation in Opposition together with a Memorandum of Law. Upon consideration of these papers, the, stenographic transcript of the grand jury minutes and the Consent Discovery Order entered in this case, this court disposes of this motion as follows: I. ·MOTION to INSPECT, DISMISS and/or REDUCE CPL ARTICLE 190 The court grants the defendant's motion to the limited extent that the court has conducted, with the consent of the People, an in camera inspection of the stenographic transcription of the grand jury proceedings. Upon such review, the court finds no basis upon which to grant defen~ant's application to dismiss or reduce the indictment. The· indictment contains 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 as to clearly apprise the defendant of the conduct which is the subject of the indictment (CPL 200.50). The indictment charges each and every element of the crimes, and alleges that the defendant committed the acts which constitute the crimes at a specified place during a specified time period and, therefore, is sufficient on its face (People v Cohen, 52 NY2d 584 (1981]; People v Iannone, 45 NY2d 589 (1978]). The defendant, who bears the burden of refuting with substantial evidence the presumption of regularity which attaches to official court proceedings (People v Pichardo, 168 AD2d 577 2d Dept 1990]), has offered no sworn factual allegations, in support of his argument that the grand jury proceedings were defective. The minutes reveal a quorum.of the grand jurors was present during the presentation of evidence, that the Assistant District Attorney properly instructed the grand jury on the law, and only permitted .those grand jurors who heard all the evidence to vote the matter (see People v [* 2] Calbud, 49 NY2d 389 [1980]; People v Valles, 62 NY2d 36 [1984]; People v Bwch, 108 AD3d 679 [2d "· \ Dept 2013]). The evidence presented, if accepted as true, is legally sufficient to establish every element of each offense charged (CPL 210.30[2]). "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 NY3d 269, 274-275 [2002]). Legally sufficient evidence means . 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 Flowers, 138 AD3d 1138, 1139 [2d Dept 2016]). "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 Jessup, 90 AD3d 782, 783 [2d Dept 201 l]):"The reviewing 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. That other, innocent inferences could possibly be draWI1 from those facts is irrelevant to the sufficiency inquiry as long as the Grand Jury could rationally have drawn the guilty inference" (People v Bello, 92 NY2d 523, 526 [1998]). Defendant's request to dismiss the indictment pursuant to CPL 210.20 and pursuant to 210.40 in furtherance of justice is denied. The defendant has cited no persuasive or compelling factor, consideration or circumstances under CPL 210.40 warranting dismissal of this indictment. In reaching a decision on the motion, the court has examined the factors listed in CPL 210.40, which include, in relevant part, the seriousness and circumstances of the offense; the extent of harm caused by the offense; the evidence of guilt; the history, character.and condition of the defendant; any exceptionally serious · misconduct oflaw enforcement personnel; the purpose and.effect of imposing upon the defendant a sentence authorized for the charged offenses; the potential impact of a dismissal on public confidence in the judicial system; the potential impact of dismissal upon the safety and welfare of the community; and· other relevant facts suggesting that a conviction would not serve a useful purpose. Having done so, the court has discerned no compelling factor, consideration or circumstance which clearly demonstrates that further prosecution or conviction of the defendant would constitute or result in injustice: Based upon the in camera review, since this court does not find release of the grand jury minutes or any portion thereof necessary to assist it in making any determinations and as the defendant has not . set forth a compelling or particularized need for the production of the grand jury minutes, defendant's application for a copy of the grand jury minutes is denied (People v Jang, 17 AD3d 693 [2d Dept 2005]; CPL 190.25[4][a]). II. MOTION TO SUPPRESS NOTICED STATEMENTS This branch of the defendant's motion seeking to suppress two noticed statements on the grounds. that they were unconstitutionally obtained is granted to the extent that a Hzmtley hearing shall be held prior to trial to determine whether any statements allegedly made by the defendant, which have been noticed by the People pursuant to CPL 710.30 (l)(a), were involuntarily made by the defendant within the meaning of CPL 60.45 (see CPL 710.20(3); CPL 710.60[3][b]; People v Weaver, 49 NY2d 1012 2 [* 3] [1980]), obtained in violation of defendant's Sixth Amendment right to courisel, and/or obtained in violation of the defendant's Fourth Amendment rights (see Dlinaw'by v New York, 442 US 200 [i979]).· III. MOTION to SUPPRESS IDENTIFICATION TESTIMONY CPL 7.10 This motion is granted to the limited extent of conducting a hearing prior to trial to determine whether the identifying witnesses had a sufficient prior familiarity with the defendant as to render them impervious to police suggestion (People v Rodriguez, 79 NY 2d 445 [1992]). In the event the court finds that there was not a sufficient prior familiarity with the defendant on the part of the witnesses, the court will then consider whether or not the noticed identifications were unduly suggestive (United.States v Wade, 388 US 218 [1967]). Specifically, the court shall determine whether the identification was so · improperly suggestive as to taint any in-court identification. In the event the identification is found to be unduly suggestive, the court shall then go on.to consider whether the People have proven by clear and convincing evidence that an independent source exists for such witnesses.' proposed in-court identification .. IV. MOTION for SANDOVAL and VENTIMIGLIA HEARINGS Defendant has moved for a pre-trial hearing to permit the trial court to determine the extent, if at all, to which the People may inquire into the defendant's prior criminal convictions, prior uncharged criminal, vicious or immoral conduct.. The People have consented to a Sandoval hearing. Accordingly, it is ordered that immediately prior to trial a hearing shall be conducted pursuant to People v Sandoval (34 NY2d 371 [1974]). At said hearing, the People shall be required to notify the defendant of all specific instances of his criminal, prior uncharged criminal, vicious or immoral conduct of which they have knowledge and which they intend to use in an attempt to impeach the defend~t's credibility if he·. elec~s to testify at trial (CPL 240.43). At the hearing, the· defendant shall bear the burden of identifying any instances of his prior misconduct that he submits the People should not be permitted to use to impeach his credibility'. The defendant shall be. required to identify the basis of his belief that each event or incident may be unduly prejudicial to his ability to testify as a witness on his own behalf (see People v Matthews, 68 NY2d 118 [1986]; People v Malphurs, 111AD2d266 [2d Dept 1985]). Defendant's appllcation for a hearing, pursuant to People v Ventimiglia (52 NY2d 350 [1981]) is denied since the People have not indicated art intention to use evidence of any prior bad act or uncharged crimes of the defendant during its case in chief (see People v Molineaux, 168 NY2d 264. [ 1901 ]). If the People move to introduce such evidence, the defendant may renew this aspect of his motion. 3 [* 4] v. MOTION for LEA VE to FILE FUTURE MOTIONS This motion is denied. Should defendant intend to bring further motions for omnibus relief, he must do so by order to show cause setting forth reasons as to why his motion was not and could not have · been brought in conformity with CPL 255.20. The foregoing constitutes .the opinion, decision and order of this court. Dated: White Plains, New York April) , 20.17 'nihan Westchester County Court Justice To: HON. ANTHONY A. SCARPINO, JR. District Attorney, Westchester County 11 l Dr. Martin Luther .King, Jr. Boulevard White Plains, New York 10601 .BY: Susan L. Pollet, Esq~ . Assistant District Attorney Maria I. Wager, Esq. Assistant District Attorney BRENDAN O'MEARA Attorney for Defendant 200 East Post Road White Plains, New York 10601 4

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