People v Johnson

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People v Johnson 2017 NY Slip Op 33195(U) June 15, 2017 County Court, Dutchess County Docket Number: 22/2017 Judge: Edward T. McLoughlin 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] CRIMINAL NYCoCt / Dutchess Court/County:________________________________________ Type:___________________________________ Case Title:__________________________________________ 22/2017 Docket Number:_____________________________________ EXPERT(s): _________________________________________ April Llave Doc Reviewer:___________________________ Edward T. McLoughlin JUDGE: ____________________________________________ File date:_______________________ Mark the Correct Category White Collar Crime Drugs DUI/DWI Immigration RICO Murder Burglary Robbery Illegal Possession of Guns/Firearms Terrorism Electronic Espionage Miscellaneous X Mark the Correct Category Crime Type Doc Label (LBL) or Category Doc Description Motion Order _MO LBLX Trial Order _TO LBLX Trial Pleading _TP LBLX Trial Motion, Memorandum, and Affidavit Trial Deposition and Discovery _TM LBLX Trial Filing _TF Police Report _AR Arrest Warrant _AW Search Warrant _SW Wiretap Warrant _WW Trial Transcript _TT Verdict, Agreement and Settlement (actuals) Jury Instruction (actual) _VS Expert Depositions _ED Expert Transcripts _ET Partial Expert Testimony _EP Expert Report and Affidavit _ER Paper Only _PO Exhibits (Note-worthy) _EX Judgments of Conviction _JC Curriculum Vitae _CV _TD _JI LBL2 CRIM100 CRIM120 CRIM140 CRIM160 CRIM180 CRIM200 CRIM220 CRIM240 CRIM260 CRIM270 CRIM280 CRIM300 [* 2] COUNTY COURT PRESENT: : DUTCHESS COUNTY HON. EDWARD T. McLOUGHLIN County Court Judge DECISION AND ORDER OMNIBUS MOTION and PEOPLE'S MOTION FOR RECIPROCAL DISCOVERY THE PEOPLE OF THE STATE OF NEW YORK Ind. No. 22/2017 Plaintiff, WILLIAM V. GRADY, ESQ. District Attorney by Ryan J. LeGrady, Esq. Attorney for Plaintiff - against TYRELL JOHNSON, Defendant. TODD W. CARPENTER, ESQ. Attorney for Defendant Notice of Motion x Affirmation in Support x Cross Motion ~~~~~~~~~~~~~~ x Answering Affirmation RE: Omnibus Motion and in Support of Cross Motion.~~~~~~ x The foregoing documents were considered in deciding these motions. The defendant has been indicted for Operating a Motor Vehicle While Intoxicated, a Class D Felony (Vehicle and Traffic Law §1192[3] and §1193 [l] [c] [2]) and Obstructing Governmental Administration in the Second Degree, a Class A Misdemeanor (Pertal Law §195.05). By omnibus motion, the defendant seeks various forms of relief. INSPECTION - DISMISSAL - REDUCTION The motion to inspect the grand jury minutes is granted to the extent that the Court has reviewed the minutes. (CPL 210.30(2] [3]. The motion to release the minutes of the testimony or the -1- [* 3] , ---~------------- I I I ---- - instructions to the parties to assist the Court in making a determination of the sufficiency of the evidence or the propriety of the instructions is denied. (CPL 210.30[3]; People v. Fetcho, 91 N.Y.2d 765). The motion to reduce the indictment is granted, solely to the extent that the first count of the indictment is reduced from Operating a Motor Vehicle While Intoxicated as a Class D Felony to Operating a Motor Vehicle While Intoxicated as a Class A Misdemeanor. (Vehicle and Traffic Law §1192[3]). The Court orders this reduction based upon insufficient evidence before the Grand Jury of the defendant's identity and a sufficient nexus to the certificates of conviction presented to the Grand Jury. The testimony before the Grand Jury fails to illicit any evidence of a date of birth for the defendant. As such, there is insufficient evidence to connect this defendant with the individual named in the certificates of conviction. This order is stayed for 30 days pursuant to CPL §210.20(6). The Court requests that the People notify the Court and defense counsel in writing if they accept the Court's ordered reduction and are willing to waive the 30 day stay to enable the matter to proceed, or if they will re-present the matter pursuant to CPL §210.60(6) (b). \ In all other respects, the motion to dismiss or reduce is denied. The indictment, as amended, is based upon competent and admissible evidence which is legally sufficient to establish and provide reasonable cause to believe that the defendant committed each offense -2- [* 4] charged therein as amended. NY2d 103). (CPL §190.65[1]); People v. Jennings, 69 The instructions given to the grand jury were adequate to enable the Grand Jury to make an informed and intelligent decision as to whether an indictment was authorized. People v. Calbud, 49 NY2d 389. The motion to dismiss on the ground that the grand jury proceeding was defective (CPL §210.20[1] [c] and §210.35) {s denied. SUPPRESSION OF STATEMENTS The defendant's motion to suppress statements alleged to have been made by the defendant as contained in the Huntley Notice served by the People is granted solely to the extent that a hearing on the motion will take place prior to trial. (CPL §710. 60 [4]). SUPPRESSION OF OBSERVATIONS OF INTOXICATION AND DEFENDANT'S CHEMICAL TEST REFUSAL The defendant moves to suppress any observations made by law enforcement of him, as a result of an alleged illegal seizure and illegal arrest on October 16, 2016. (CPL §710.20[1]); Dunaway v. New York, 442 US 200. The People oppose the defendant's application and assert that the defendant has failed to set forth sufficient facts in his moving papers to warrant a hearing. The defendant's moving papers, taken in conjunction with the People's moving papers, provide a sufficient factual basis upon which to grant the hearing requested. See People v. Burton, 6 NY3d 584. Therefore, the defendant's motion to suppress the police -3- -=--- [* 5] officer's observations of him is granted solely to the extent that a hearing on the motion will take place prior to trial. (CPL §710.60 [4]). The defendant also moves to suppress evidence of his refusal to submit to a chemical test on the date in question. That application is granted solely to the extent that a hearing will be held prior to trial. People v. Boone, 71 AD2d 859 (2nd Dept. 1979); People v. Robles, 180 Misc. 2d 512 (Criminal Court, Bronx County 1999). PRECLUSION OF ALCO-SENSOR RESULTS The defendant moves to preclude any results obtained from an alee-sensor alleged to have been utilized by law enforcement during his stop and arrest. This application is denied as moot. A review of the Grand Jury minutes provides that the defendant did not submit to an alee-sensor test during the stop on October 16, 2016. MOTION TO DELETE REFERENCE TO FELONY DESIGNATION The defendant moves to delete any reference in the indictment as to the level of DWI that he is charged with. Based upon the Court's earlier decision reducing the first count to a misdemeanor, this application is rendered moot. If the People chose to represent the matter to the Grand Jury, and the Grand Jury finds that the defendant should be indicted for a felony level Driving While Intoxicated charge, the defendant may renew this application. -4- [* 6] It should be noted, that if the defendant concedes his prior Driving While Intoxicated convictions outside of the presence of the jury, the jury need not hear what level crime of Driving While Intoxicated he may be charged with. DISCOVERY AND INSPECTION Defendant's motion for discovery is granted solely to the extent that the District Attorney is directed to make available to the defendant's attorney any and all property and information required to be disclosed at the appropriate times pursuant to CPL §240.20. At the time of defendant's arraignment on March 24, 2016, the People served a document entitled Voluntary Disclos.ure Form. In all other respects, the defendant's motion for discovery and inspection is denied. The Prosecution has moved for reciprocal discovery pursuant to CPL §240.30. This motion is granted solely to the extent that the defendant's attorney is directed to make available to the district attorney any and all property and information required to be disclosed pursuant to CPL §240.30. Both sides are reminded that they are under a continuing obligation to comply with the Court's directive up to and including the time of trial. SANDOVAL HEARING Defendant's motion for a Sandoval Hearing is granted. The hearing will be held on a date prior to the trial. The District Attorney shall notify defendant's attorney of -5- [* 7] all specific instances of defendant's alleged criminal convictions, underlying acts, prior uncharged criminal, vicious or immoral conduct of which the District Attorney has knowledge and intends to use at trial for purposes of impeaching the credibility of the defendant. Such notification shall be made in writing with a copy to the Court at least one business day prior to the date scheduled for the hearing. MOLINEUX Defendant's motion for a Molineux Hearing is denied as unnecessary at this time since the People have not made any application pursuant to the dictates of People v. Ventimiglia, 52 N.Y.2d 350 to offer evidence of any specific instances of uncharged crimes which they intend to offer in their direct case. If the People intend to make an application pursuant to People v. Ventimiglia, they should do so within 45 days of this Order or 30 days prior to trial - whichever is sooner. LEAVE TO FILE ADDITIONAL MOTIONS Defendant's request for leave to file additional motions is denied unless defendant can first make a showing of good cause. MEMORANDUM OF LAW The decision as to the need or advisability of the submission of Memorandum of Law will be made subsequent to any pre-trial hearings. -6- [* 8] PRE-TRIAL HEARING TRANSCRIPTS Transcripts of any pre-trial hearing shall be provided in accord with a schedule to be determined at the pre-trial hearing provided that defendant's attorney makes the request for a transcript at the conclusion of the hearing. This constitutes the decision and order of this Court. So ordered: Dated: Poughkeepsie, New York ~ 2017 \5', ~ c~ ~~~~-+-+~~~~~~~~~- COUNTY TO: T. MCLOUGHLIN URT JUDGE Ryan J. LeGrady, Esq. Dutchess County District Attorney's Office 236 Main Street Poughkeepsie, NY 12601 Todd W. Carpenter, Esq. 4 Liberty Street Poughkeepsie, NY 12601 -7-

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