People v Shepherd

[*1] People v Shepherd 2017 NY Slip Op 50230(U) Decided on February 14, 2017 Supreme Court, Queens County Lopez, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 14, 2017
Supreme Court, Queens County

The People of the State of New York

against

Eugene Shepherd III, Defendant.



02368-2016



The People by

ADA Genevieve Gadaleta

Queens County District Attorney's Office

125-01 Queens Boulevard

Kew Gardens, New York 11415

The Defendant by

Anthony Como, Esq.

125-10 Queens Boulevard

Kew Gardens, New York 11415
Gene R. Lopez, J.

Defendant, Eugene Shepherd, has submitted an omnibus motion filed January 3, 2017, [*2]seeking: Discovery and a Bill of Particulars; inspection of the Grand Jury Minutes and dismissal or reduction of the indictment; suppression of evidence; Sandoval relief; Brady material; and preservation and production of any police recorded communications. The People's response, filed January 18, 2017, consents to some of the relief sought and opposes other relief. The court decides the motion as follows.

BILL OF PARTICULARS AND DISCOVERY

The branch of the defendant's motion seeking a Bill of Particulars and Discovery is granted to the extent provided by the People pursuant to CPL 240.20 and CPL 200.95.

INSPECTION AND DISMISSAL OR REDUCTION

Defendant's motion to inspect the Grand Jury minutes is granted. Upon inspection, the motion to dismiss the indictment is denied. The minutes reveal that a quorum of the grand jurors was present during the presentation of evidence and at the time the prosecutor instructed the grand jurors on the law. The indictment substantially conforms to the requirements set forth in CPL 200.50. Defendant's motion to release the Grand Jury minutes is denied since release of the Grand Jury minutes is not necessary to assist this court in determining defendant's motion to reduce or dismiss the indictment.

Upon inspection of the Grand Jury minutes, this court found the evidence to be legally sufficient to support all the counts of the indictment except as to counts one and two- driving while intoxicated in violation of Vehicle and Traffic Law §1192(2), (3) as class D felonies. For the reasons to follow, the evidence introduced by the prosecutor to establish the defendant's current charges of driving while intoxicated should have been deemed class D felonies was insufficient.

The prosecutor introduced documentary evidence that indicated that the defendant had been convicted on March 05, 2008, of violating Pennsylvania Statute 75 §3802(a)(1) and (b), driving under the influence of alcohol - general impairment and high rate of alcohol stemming from two incidents that occurred on April 22, 2007 and September 24, 2007.

Pennsylvania Statute 75 §3802(a)(1) provides that "[a]n individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle." Pennsylvania Statute 75 §3802(b) provides that "[a]n individual may not drive, operate, or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration in the individual's blood or breath is at least 0.10% but less than 0.16% within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle."

Vehicle and Traffic Law §1192(8) provides in relevant part:

"A prior out-of-state conviction for operating a motor vehicle while under the influence of alcohol or drugs shall be deemed to be a prior conviction of a violation of this section for purposes of determining penalties imposed under this section or for purposes of any administrative action required to be taken pursuant to subdivision two of section eleven hundred ninety-three of this article; provided, however, that such conduct, had it occurred [*3]in this state, would have constituted a misdemeanor or felony violation of any of the provisions of this section."

During the final instructions, the prosecutor read to the Grand Jurors Vehicle and Traffic Law §1192(8) and instructed the Grand Jurors that in order to find a true bill as to counts one and two, both of which were charged as class D felonies, they must find that the conduct to which the defendant admitted and had supported his two 2008 convictions in Pennsylvania on April 22, 2007 in violation of Pennsylvania Statute 75 §3802(a)(1) and on September 24, 2007 in violation of Pennsylvania Statute 75 §3802(b) would, had such conduct occurred in New York, have constituted a misdemeanor or felony violation of any provision of §1192 of New York's Vehicle and Traffic Law. The prosecutor then read to the Grand Jurors the above mentioned statutes from the Pennsylvania.[FN1] The prosecutor also read to the Grand Jurors the statutory language of Vehicle and Traffic Law §1192(2) and (3).

In light of the language set forth in Vehicle and Traffic Law §1192(8), the prosecutor was required to establish that the conduct which was the bases of defendant's 2008 convictions in Pennsylvania constituted misdemeanor or felony violations of any provision of Vehicle and Traffic Law §1192. Based upon the documents introduced by the prosecutor, Police Officer Dimoff alleged that on April 22, 2007, the defendant was operating a motor vehicle after consuming alcohol and the result of a breath test indicated that the alcohol concentration of defendant's breath or blood was 0.11%. State Trooper Bush alleged that on September 24, 2007, the defendant was operating a motor vehicle while under the influence of marihuana and he refused to submit to a chemical test. As to the September 24, 2007 incident, the allegations reflect that the defendant had operated his motor vehicle while under the influence of marihuana but the prosecutor did not read to the Grand Jurors the applicable statutory language of Vehicle and Traffic Law §1192(4) and/or (4-a) to assist the Grand Jurors in determining whether the defendant's conduct on September 24, 2007 would constitute a misdemeanor or felony conviction under New York law.

In the attempt to demonstrate the defendant's prior convictions in Pennsylvania, the prosecutor introduced two sets of documents concerning the defendant's court cases regarding the 2007 incidents and ultimately his pleas of guilty/nolo contendere. Both sets of documents were certified by Nancy Marshall, Deputy Clerk of the Courts, Franklin County, Pennsylvania. These documents were also required to be accompanied by a certificate of a public officer that Ms. Marshall has legal custody of the records and that her signature is believed to be genuine. (see CPLR 4540[c]) The prosecutor did not submit a second certificate.

Although the documents were improperly introduced and the prosecutor did not establish defendant's prior 2008 Pennsylvania conviction regarding the September 24, 2007 incident was the same as to violate a misdemeanor or felony provision of Vehicle and Traffic Law §1192, the evidence before the Grand Jury was legally sufficient to establish the charges of driving while [*4]intoxicated (Vehicle and Traffic Law §§1192[2], [3]). Accordingly, counts one and two of the indictment are reduced from the class D felonies of driving while intoxicated to the unclassified misdemeanors driving while intoxicated. The People are granted to leave to represent to another Grand Jury.

MOTIONS TO SUPPRESS

The defendant's motion to suppress the chemical test result is granted to the extent that a Johnson/Dunaway hearing is ordered.

The defendant's motion to suppress the physical evidence and any post-seizure observations is granted to the extent that a Mapp/Dunaway hearing is ordered.

The defendant's motion to suppress his statements is granted to the extent that a Huntley/Dunaway hearing is ordered. This court acknowledges that the People consented to a Huntley hearing.

SANDOVAL RELIEF

The defendant's Sandoval motion is referred to the trial court. Disclosure of the prior bad act evidence which the People will seek to introduce at trial for purposes of impeaching defendant's credibility, shall be made in accordance with the time frame set forth in CPL 240.43.

BRADY/GIGLIO MATERIAL

As to the demand for Brady material, the People are reminded of their continuing duty to provide evidence or information that is favorable to the defendant. The People are also reminded of their continuing duty to disclose exculpatory material under Giglio v United States, 405 US 150 (1972). As to the defendant's demand for Rosario/Consolazio material, the People are further reminded of their obligation under CPL 240.44 and 240.45.

PRESERVATION AN D PRODUCTION OF ALL POLICE RECORDED COMMUNICATIONS

The People are directed to preserve and turn over to the defendant a copy of any 911 telephone calls made by anyone connected to this matter. The People are directed to preserve and turn over to the defendant any recorded radio communications related to this matter.

RECIPROCAL DISCOVERY

The People's request for reciprocal discovery is granted pursuant to CPL §240.30.

This constitutes the decision and order of the court.

The Clerk of the court is directed to distribute copies of this decision and order to the attorney for the defendant and to the District Attorney.

February 14, 2017 Footnotes

Footnote 1:In this case, the documentary evidence introduced by the prosecutor indicated the titles of the Pennsylvania statutes upon which the defendant was convicted, namely convictions for operating a motor vehicle while under the influence of alcohol or drugs. Therefore, the prosecutor did not need to read the Pennsylvania statutes.