People v Dos Santos
Annotate this CaseDecided on March 30, 2017
Criminal Court of the City of New York, New York County
The People of the State of New York
against
Amy Dos Santos, Defendant.
2016NY057077
For the Defendant: The Legal Aid Society
(Shanti Narra, Esq.)
For the People: Cyrus R. Vance, Jr., District Attorney, New York County
(Heather C. Manley, of counsel)
David Frey, J.
The defendant is charged with one count of Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree (VTL 511[1][a]) and one count of Unlicensed Driving (VTL 509[1]).
The defendant, in an omnibus motion dated January 17, 2017, seeks: (1) a Huntley/Dunaway hearing, (2) a Mapp hearing, (3) an order to compel a Bill of Particulars and discovery, (4) Sandoval and Molineux hearings, (5) preservation of evidence, and (6) reservation of rights. The People served their motion response on or about February 14, 2017, as well as a cross-motion for reciprocal discovery. The People already provided the defendant a Corroborating affidavit, a New York State (NYS) Department of Motor Vehicles (DMV) Certified Abstract of driving Record, and Proof of Mailing, together with a CPLR 4518 Certification, on November 15, 2016. The People served their Voluntary Disclosure Form (VDF) on or about March 20, 2017.The defendant's omnibus motion is decided as follows:
HUNTLEY/DUNAWAY MOTION
The defendant's motion for a Huntley/Dunaway hearing, to which the People consented, is granted.
POLICE OBSERVATIONS AND DMV ABSTRACT RECORDS
The defendant's motion to suppress police observations of the defendant and DMV records are denied. The defendant claims she "was not engaged in criminal behavior and did not violate any laws or regulations of the City or State of New York." Defense Counsel's Affirmation, dated January 17, 2017, at p.4, ¶3, and p.5, ¶12. The People deny "defendant was illegally stopped, apprehended, and/or arrested," but claim in the alternative that even if she had [*2]been, her identity and DMV documents are not subject to the exclusionary rule. People's Affirmation, dated February 14, 2017, at p.4, ¶14. The People are correct.
In 2010, this state's highest court made it clear that "there is no sanction where an illegal arrest leads only to discovery of [a person's] identity and that merely leads to the official file or other independent evidence."[FN1] Yet, the defendant asks this court to overturn the New York Court of Appeals based upon questions asked at oral argument by Justice Alito and the late Justice Scalia when the Tolentino case was subsequently heard by the United States Supreme Court. This invitation is declined.
First, it is a maxim that at trial "a question alone is not evidence."[FN2] If a trial jury, which is in the position to see the litigants and hear their tone, is prohibited from using mere questions sans answers to determine questions of fact, then surely it is improvident for this court to rely solely on questions asked several years earlier during an unrelated case's oral argument to determine questions of law.
Second, this court has reviewed the United States Supreme Court's transcript created during oral argument in Tolentino v. New York.[FN3] It is clear that the two questions cited by the defendant do not adequately reflect the incredulity of the Justices who participated in oral argument about many of the positions taken by Tolentino's attorney. This is perhaps best demonstrated by the actual per curiam decision of the Supreme Court, in which the Justices stated, "the writ of certiorari is dismissed as improvidently granted," without a dissent by either Justices Alito or Scalia.[FN4]
Finally, as noted above, the People consented to a Huntley/Dunaway (or Ingle [FN5] ) hearing, so any allegations of police impropriety — and the relief required, if any — can be more fully explored by the hearing court.[FN6]
WADE HEARING
The defendant cites CPL 710.30(3) and request the court to suppress "any statement or identification testimony at trial for which proper notice has not been given." To the extent this is a third attempt to suppress defendant's identity, defendant's motion is denied for the reasons stated above. To the extent it is a request for a Wade hearing, the People did not give CPL § 710.30(1)(b) notice at arraignment or, to the court's knowledge, at any other time. Thus, [*3]defendant's motion for a Wade hearing is denied as well.
DISCOVERY
The People's disclosures provide all the discovery to which the defendant is entitled at this time. CPL 240.20. The defendant's motion for discovery is denied.
CONTINUING DISCLOSURE DUTY
The People must comply with their continuing duty to disclose, including potentially exculpatory evidence, to the defense. CPL 240.20(2) and 240.60; Brady v Maryland, 373 US 83 (1963).
BILL OF PARTICULARS
The People provided the defendant a Corroborating Affidavit, a New York State Department of Motor Vehicles Certified Abstract of Driving Record and Proof of Mailing, which combined fully disclose the charges against the defendant and their factual basis. Moreover, everything CPL 200.95(1)(a) requires a Bill of Particulars to include is included in the People's disclosures and VDF. Thus, the defendant's motion for a Bill of Particulars is denied.
PRESERVATION OF AUDIO RECORDINGS
The People have indicated in their VDF that they will not be utilizing any tapes or electronic recordings as evidence in this matter. Therefore, the defendant's motion is denied.
SANDOVAL AND VENTIMIGLIA MOTIONS
The defense motion for a Sandoval hearing is granted and referred to the trial court (CPL 240.43). Likewise, the defense motion for a Ventimiglia (Molineux) hearing to preclude evidence of the defendant's prior uncharged criminal, vicious, or immoral conduct is also granted and referred to the trial court. The People are ordered to give notice to the defendant and the trial court of their proposed Molineux evidence at least three days prior to the scheduled trial date, excluding Saturdays, Sundays, and holidays (CPL 240.43).
RESERVATION CLAUSE
Defendant's motion to file further pre-trial motions is granted to the extent they are based on new facts or law that "defendant could not, with due diligence, have been previously aware, or which, for other good cause, could not reasonably have been raised" within 45 days after defendant's arraignment and before trial (CPL 255.20[3]).
RECIPROCAL DISCOVERY
The People's request for reciprocal discovery under CPL 250.20 and CPL 240.30(1) is granted as follows:
1. Eight days have passed since the People's demand for alibi notice, thus defendant is precluded from offering evidence that she was at some place other than in her motor vehicle on the corner of West 157th Street and Broadway in Manhattan at the time of the alleged incident, unless the defendant can show good cause for the delay (CPL 250.20[1]).
2. Defendant shall disclose and make available, subject to constitutional limitation, all CPL 240.30(1) and CPL 240.30(2) discovery materials.
3. As more than 30 days having passed since defendant's arraignment, defendant is precluded from offering psychiatric evidence, unless defendant can show good cause for the delay (CPL 250.10[2]).
Dated: March 30, 2017
New York, New York
E N T E R:
______________________________
DAVID FREY, J.C.C. Footnotes
Footnote 1:People v Tolentino, 14 NY3d 382, 385-86 (2010) (quoting US v Guzman-Bruno, 27 F3d 420, 422 [9th Cir. 1994] [citation and internal quotation marks omitted]).
Footnote 2:CJI2d[NY] Preliminary Instructions; Presentation of Evidence.
Footnote 3:http: //www.supremecourt.gov/oral_arguments/argument_transcripts/09-11556.pdf
Footnote 4:Tolentino v New York, 563 US 123 (2011).
Footnote 5: People v Ingle, 36 NY2d 413(1975).
Footnote 6:As Justice Alito stated during the Tolentino argument, the hearing will likely consist of one question: "Why did you stop [her]?" Transcript of Tolentino argument, p.40, lines 3-11.
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