People v Hutcherson
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People v Hutcherson 2017 NY Slip Op 33046(U) December 12, 2017 County Court, Westchester County Docket Number: 17-0702-03 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 ON. --------------------------------------------------·-------·---------X WESTCHESTER Id. fl·2017 THE PEOPLE OF THE STATE OF NEW YORK -against- ALEXANDER CROOKS, ANTWAN HALL, and XAVIER HUTCHERSON, Defendants. ------------------~---------:-------------------------------------X ~;.-~ MINIHAN J ' · ~~Q,~ .~ il»r-i~if~SR: Defendant, XAVIER HUTCHERSON, having been indicted on or .about September 7, · 2017, for the crime of Criminal Possession of Stolen Property in the Third Degree (Penal Law§ 165.50) has filed an omnibus motion consisting of a Notice of Motion and an Affirmation in Support thereof. In response thereto, the People have filed an Affirmation in Opposition together with a Memorandum of Law. By the same indictment, co-defendant ALEXANDER CROOKS and ANTWAN HALL are charged with acting in concert to commit Burglary in the Second Degree (Penal Law§ 140.25 [2]) and Robbery in the Second Degree (Penal Law§ 160.10 [1]). ALEXANDER CROOKS is charged individually with the crimes of Robbery in the Second Degree (Penal Law§ 160.10 [1]), Grand Larceny in the Fourth Degree (Penal Law§ 155.30 [5]), and Criminal Possession of Stolen Property in the Third Degree (Penal Law § 165 .50). ANTWAN HALL is charged individually with Burglary in the Second Degree (Penal Law § 140.25 [2]) and Grand Larceny in the Third Degree (Penal Law§ 155.35 [1]). 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 moti.on as follows: A. 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 . · defendant's application to dismiss or reduce the indictment. Defendant's request to dismiss the indictment in the interests 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 [* 2] 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 of law 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. Accordingly, the defendant's motion to dismiss in the · interest of justice is denied. 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 grand jury was properly instructed (see People v Calbud, 49 NY2d 389 [1980]; People v Valles, 62 NY2d 36 [1984]; People v Burch, 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 me~s 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 2011]). "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 th~ charged crimes, and whether the Grand Jury could rationally have drawn the guilty inference. That other, innocent inferences could possibly be drawn 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]). Additionally, 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. 2 [* 3] A review of the minutes also reveals that accomplice testimony is not relevant so no instruction with regard to accomplice liability was warranted however the Grand Jury was properly instructed as to accomplice liability with regard to the video taped statement evidence (People v Burch, 108 AD3d 679 [2d Dept 2013]). Based upon the in camera review1 since this court does not find reiease 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 grandjury minutes is denied (People v Jang, 17 AD3d 693 [2d Dept 2005]; CPL 190.25[4][a]). B. MOTION to SUPPRESS NOTICED STATEMENTS This branch of ~he defendant's motion seeking to suppress statements on the grounds that they were unconstitutionally obtained is granted to the extent that a Huntley 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 [1980]), obtained in violation of defendant's Sixth Amendment right to counsel, and/or obtained in violation of the defendant's Fourth Amendment rights (see Dunaway v New York, 442 US 200 [1979]). Defendant's request for a voluntariness hearing regarding unnoticed statements to police officers that the People intend to use solely on cross-examination for impeachment, or on rebuttal is denied as premature since there is no evidence that any such statements exist other than the ones noticed by the People. C. .MOTION to SUPPRESS PHYSICAL EVIDENCE Defendant's motion to suppress unidentified evidence on the ground of illegal arrest is not supported with sworn allegations of fact and the request for a hearing based on conclusory statements of illegal seizure and arrest are summarily denied (People v France, 12 NY3d 790 · [2009]; People v Jones, 95 NY2d 721 [2001]; People v Anderson, 253 AD2d 636 [1st Dept 1998]; CPL 710.60[3][b]; see also People v Scully, 14 NY3d 861 [2010]). Defendant has not challenged the search warrants however with respect to the property or information seized pursuant to multiple search warrants dated May 4, 2017, May 12, 2017, June 8, 2017, June 12, 2017, June 1, 2017 and August 10, 2017, the motion to suppress is denied. The Court has reviewed the affidavits in support of the search warrants for the locations searched ~d finds that they did provide the signing magistrates with probable cause to believe that evidence could be located at the locations described in the warrants. The People have disclosed the warrants and the supporting affidavits subject to redactions. 3 [* 4] Notwithstanding, this branch of the defendant's motion is granted solely to the extent of conducting a Mapp hearing prior to trial to determine the propriety of any search resulting in the seizure of property (including the defendant's phone after his arrest) (see Mapp v Ohio, 367 US 643(1961]. The hearing will also address whether any evidence was obtained in violation of the defendant's Fourth Amendment rights (see Dunaway v New York, 442 US 200 [1979]). The hearing will also address whether the defendant has a reasonal:?le expectation of privacy as to the alleged stolen vehicle (the BMW) to constitute standing to challeng~ the search and seizure of any physical evidence (see Rakas v Illinois, 439 US 128 [1978]; People v Mendoza, 82 NY2d 41? [1993]; People v Hornedo, 303 AD2d 602 [2d Dept 2003]). D. MOTION for DISCOVERY, DISCLOSURE and INSPECTION CPL ARTICLE 240 The parties have entered into a stipulation by way of a Consent Discovery Order consenting to the enumerated discovery in this case. Defendant'$ motion for discovery is granted to the extent provided for in Criminal Procedure Law Article 240. If there any further items discoverable pursuant to Criminal Procedure Law Article 240 which have not been provided to defendant pursuant to the Consent Discovery Order, they are to be provided forthwith. As to the defendant's demand for exculpatory material, the People·have acknowledged their continuing duty to disclose exculpatory material at the earliest possible date upon its lliscovery (see Brady v Maryland, 373 US 83 [1963]; Giglio v United States, 405 US 150 [1972]). The People have also acknowledged their duty to comply with People v Rosario, (9 NY2d 286 [ 1961 ]). In the event that the People are or become aware of any material which is arguably exculpatory ·and they are not willing to consent to its disclosure to the defendant, they are directed to immediately disclose such material to the Court to permit an in camera inspection and determination as to whether such must be disclosed to the defendant. . Defendant's motion for a further Bill of Particulars is denied. The Bill of Particulars set forth in the Consent Discovery Order provided to the defendant has adequately informed the defendant of the substance of his alleged conduct and in all respects complies with CPL 200.95. The People recognize their continuing duty to disclose the terms of any deal or agreement made between the People and any prosecution witness at the earliest possible date (see People v Steadman, 82 NY2d 1 [1993]; Giglio v United States, 405 US 150 [1972]; Brady v Maryland, 373 US 83 [1963]; People v Wooley, 200 AD2d 644 [2d Dept 1994]). Except to the extent that the defendant's application has been specifically granted herein, it is otherwise denied as seeking material or information beyond the scope of discovery (see People v Colavito, 87 NY2d 423 [1996]; Matter of Brown v Grosso, 285 AD2d 642 [2d Dept 2001]; Matter of Brown v Appelman, 241 AD2d 279 [2d Dept 1998]; Matter of Catterson v Jones, 229 AD2d 435 [2d Dept 1996]; Matter of Catterson v Rohl, 202 AD2d 420 [2d Dept1994]). 4 [* 5] E. 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 vSandoval (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 ot immoral conduct of which they have knowledge and which they intend to use in an attempt to impeach the-defendant's credibility if he elects 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]). To the extent defendant's application is for a hearing pursuant to People v Ventimiglia (52 NY2d 350 [1981]), it is denied since the People have not indicated ail 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. F. MOTION FOR A SEVERANCE The defendant moves for a severance from his co-defendants. When charges against co-defendants are properly joined in a single indictment, motions for separate trials are addressed to the discretion of the trial court (see People v Mahboubian, 74 NY2d 174, 183 [1989]). When such a motion is made, "severance is compelled where the core of each defense is in irreconcilable conflict with the other and where there is a significant danger, as both defenses are portrayed to the trial court, that the conflict alone would lead the jury to infer defendant's guilt" (People v Mahboubian, 74 NY2d at 184). Inasmuch as the defenses asserted by the defendant and the co-defendants are not in irreconcilable conflict with each other such that there is a danger that the conflict alone would lead a jury to infer the defendant's guilt, his motion to sever is denied (see People v Terry, 78 AD3d 1207 [2d Dept 2010]). The defendant was properly joined in the same indictment (CPL 200.40[1]). The Court may, however, for good cause shown order that defendant be tried separately. Good cause includes a showing that defendant would be "unduly prejudiced by a joint trial" (CPL 200.40[1]). Further, where the proof against all defendants is supplied by the same evidence, "only the most 5 [* 6] .. cogent reasons warrant a severance"(People v Bornholdt, 33 NY2d 75, 87 [1973]; People v Kevin Watts, 159 AD2d 740 [2d Dept 1990]). And," ... a strong public policy favorsjoinder, because it expedites the judicial process, reduces court congestion, and avoid~ the necessity of recalli_ng witnesses .. ."(People v Mahboubian, 74 NY2d 174, 183 [1989]). Defendant's motion to sever on the ground that there would potentially be prejudice arising from a Sandoval ruling is denied as premature, with leave to renew after a Sandoval ruling, and upon a showing that a joint trial will result in unfair prejudice to him and substantially impair his defense. This court must determine whether the co-defendants' statements.are admissible and if so, ifit is possible to redact the co-defendants' statements and whether the codefendants will be testifying at trial. Accordingly, the defendant's motion for a severance is denied as premature,, with leave to renew upon a determination of the admissibility of codefendants' alleged statements, and upon a showing that a joint trial will result in unfair prejudice to her and substantially impair her defense. Notably, a limiting i_nstruction at trial would properly direct the jury to separately _consider the proof as to each crime charged, thereby eliminating any prejudice to the defendant (see People v Veeny, 215 AD2d 605 [2d Dept 1995]). The foregoing constitutes the opinion, decision and order of this Co Dated: White Plains, New York DecembZ · , 2011 Westchester County Court Judge To: HON. ANTHONY A. SCARPINO, Jr. · District Attorney, Westchester County 111 Dr. Martin Luther King, Jr. Boulevard White Plains, New York 10601 BY: . Matthew Martinez, Esq. · Assistant District Attorney Matthew Montana, Esq. Attorney for Defendant Hutcherson · Peekskill, NY 10566 6
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