People v Kenner
Annotate this CaseDecided on September 14, 2004
Supreme Court, Westchester County
THE PEOPLE OF THE STATE OF NEW YORK
against
Deshawn Kenner, Defendant.
00-1289
Honorable Jeanine Pirro
District Attorney of Westchester County
County Courthouse
111 Dr. Martin Luther King, Jr., Blvd.
White Plains, New York 10601
Attention: A.D.A. Ofer Raban, for plaintiff
Stephen J. Pittari, Esq.
Attorneys for Defendant
1 North Broadway
White Plains, New York 10601
Attn: Harvey Loeb, Esq.
Richard A. Molea, J.
By notice of motion, the defendant moves this Court to dismiss Count Two of the instant indictment through which the defendant is charged with the crime of Murder in the second degree pursuant to Penal Law §125.25(2). Resolution of the defendant's instant application has been based upon the Court's consideration of the notice of motion and affirmation with annexed exhibits of counsel for the defendant, Harvey Loeb, Esq., and the affirmation in opposition and memorandum of law of Assistant District Attorney Ofer Raban. Upon the foregoing papers, the instant application is resolved as follows:
Pursuant to Indictment No. 00-1289, defendant has been charged with a single count of Murder in the second degree, in violation of Penal Law §125.25(1), a single count of Murder in the second degree, in violation of Penal Law §125.25(2), a single count of Attempted Murder in the second degree, in violation of Penal Law §§110 and 125.25(1), two counts of Criminal Use of a Firearm in the first degree, in violation of Penal Law §265.09(1)(a), and two counts of Criminal Possession of a Weapon in the second degree, in violation of Penal Law §265.03.
By Decision and Order, entered on August 14, 2001, the Westchester County Court (Lange, J.) denied that branch of defendant's omnibus motion which sought the dismissal or reduction of the [*2]counts charged under the instant indictment due to the alleged insufficiency of the evidence adduced before the grand jury in support of same. Upon consideration of a pre-trial motion brought by the defendant, the Supreme Court, Westchester County (Perone, J.) dismissed Count Four of the instant indictment, which charged a single count of Criminal Use of a Firearm in the first degree pursuant to Penal Law §265.09(1)(a). Thereafter, upon consideration of the defendant's application seeking a trial order of dismissal of Count Two following the conclusion of the People's case and at the conclusion of all the evidence, the Supreme Court, Westchester County (Perone, J.) denied same.
Upon completion of the trial of the instant indictment in the Supreme Court, Westchester County (Perone, J.), the defendant was acquitted of Count One and convicted of all remaining counts charged thereunder. On June 1, 2004, the Appellate Division, Second Department overturned the defendant's conviction under the instant indictment upon grounds unrelated to those raised through the instant application and remanded same for a new trial of all charged counts of which the defendant had been convicted. Through the instant motion, the defendant seeks the dismissal of Count Two, as charged under the instant indictment, ostensibly alleging that the evidence adduced before the grand jury and before the petit jury was insufficient to support the crime of Murder in the second degree as charged pursuant to Penal Law §125.25(2), and that Penal Law §125.25(2) is unconstitutionally vague under both the New York State and United States Constitution.
As a preliminary matter, the Court notes that counsel for the defendant has neglected to identify any authority which provides a procedural vehicle in law authorizing him to bring the instant application challenging either the sufficiency of evidence adduced before the grand jury, or the petit jury, in support of the crime of Murder in the second degree charged under Count Two, at this stage of the proceedings. Accordingly, the Court will address all possible procedural avenues through which the defendant might have brought the instant application.
Turning first to consider the defendant's application as a request for reargument of either the denial of that branch of his omnibus motion which sought the dismissal of Count Two due to the alleged insufficiency of the evidence adduced before the grand jury in support of same, or the denial of an application seeking a trial order of dismissal of Count Two following the conclusion of the People's case or at the conclusion of all the evidence, such an application is properly addressed to the sound discretion of the court and may only be granted upon a showing that the court overlooked or misapprehended the relevant facts or misapplied any controlling principle of law and thereby mistakenly reached its earlier decision (see, CPLR 2221[d][2]; see also, Pahl Equip. Corp. v. Kassis, 182 AD2d 22, lv. denied, app. dismissed 80 NY2d 1005; Schneider v. Solowey, 141 AD2d 813; Foley v. Roche, 68 AD2d 558, 567). The statutory limitations upon the availability of the motion to reargue reflect the well-settled view that the motion to reargue is not designed to serve as a vehicle which may enable an unsuccessful party to re-litigate an issue which was previously decided (see, McGill v. Goldman, 261 AD2d 593, 594; see also, Matter of Mayer v. National Arts Club, 192 AD2d 863, 865; Pahl Equip. Corp. v. Kassis, supra, at 22; Bankers Trust Co. of California v. Payne, 188 Misc 2d 726). In this regard, the amendment of CPLR 2221, effective July 20, 1999, requires that a motion for leave to reargue must be made within thirty (30) days following service of a copy of the order determining the prior motion and written notice of its entry (see, CPLR 2221[d][3]). Accordingly, insofar as the defendant's instant application is considered to be a motion seeking reargument of either the denial of that branch of his omnibus motion which sought the dismissal of Count Two, or the denial of his application seeking a trial order of dismissal concerning Count Two, [*3]same must be denied due to untimeliness pursuant to CPLR 2221(d)(3).
Were the Court to consider the instant motion as a de novo application, it is well-settled that a request for non-evidentiary relief which was previously denied by a court of coordinate jurisdiction may be rejected by the court in which the application is subsequently brought pursuant to the doctrine of the law of the case (see, People v. Evans, 94 NY2d 499; see also, People v. Nieves, 67 NY2d 125). Here, the record indicates that the defendant's prior applications seeking the dismissal of Count Two upon grounds due to the alleged insufficiency of the evidence adduced before the grand jury was denied by the Westchester County Court (Lange, J.). Similarly, the record also indicates that the defendant's prior application seeking a trial order of dismissal of Count Two upon the conclusion of the People's case and upon the conclusion of all the evidence was denied by the Supreme Court, Westchester County (Perone, J.). Accordingly, upon consideration of the instant motion as a de novo application, as same concerns a request for the same non-evidentiary relief which was previously denied by a court of coordinate jurisdiction, the doctrine of the law of the case precludes the defendant from raising such issues before this Court (see, Matter of Dondi v. Jones, 40 NY2d 8; Martin v. City of Cohoes, 37 NY2d 162).
Based upon the foregoing, that branch of the defendant's application seeking the dismissal of Count Two charged under the instant indictment upon a challenge to the sufficiency of the evidence adduced before the grand jury and before the petit jury to support the crime of Murder in the second degree as charged under Penal Law §125.25(2) is denied.
Turning next to consider that branch of the instant application through which the defendant alleges that Penal Law §125.25(2) is unconstitutionally vague under both the New York State and United States Constitution based upon the conclusory claim that the statute fails to provide a "rational distinction between a 'grave risk of death' in depraved indifference murder and 'substantial risk of death' in reckless manslaughter". In support, the defendant cites to the decision reached by the United States District Court for the Southern District of New York in Jones v. Keane (NYLJ, June 7, 2002, at 25, col. 3), wherein Penal Law §125.25(2) was found to be unconstitutionally vague. Initially, as it is well-settled that the interpretation of a federal constitutional question by a federal trial court is not binding authority upon a state court considering the same constitutional question, the ruling by the United States District Court in Jones v. Keane, as set forth herein, is not binding upon this Court (see, Matter of DeBellis v. Property Clerk of City of New York, 79 NY2d 49, 57; see also, People v. Brown, 235 AD2d 344). In this regard, the Appellate Division, Second Department, having considered the very arguments raised by the defendant herein challenging the facial constitutionality of Penal Law §125.25(2) under both the New York State and United States Constitution, has repeatedly found that such challenges are without merit (see, People v. Reyes, 4 AD3d 541; see also, People v. Joyner, 303 AD2d 421).
Based upon the foregoing, that branch of the defendant's application seeking the dismissal of Count Two charged under the instant indictment upon a challenge to the facial constitutionality of Penal Law §125.25(2) under both the New York State and United States Constitution is denied. The foregoing shall constitute the Decision and Order of the Court.
Dated: White Plains, New York
September 14, 2004
Honorable Richard A. Molea
Acting Justice of the Supreme Court
TO:Honorable Jeanine Pirro
District Attorney of Westchester County
County Courthouse
111 Dr. Martin Luther King, Jr., Blvd.
White Plains, New York 10601
Attention: A.D.A. Ofer Raban, for plaintiff
Stephen J. Pittari, Esq.
Attorneys for Defendant
1 North Broadway
White Plains, New York 10601
Attn: Harvey Loeb, Esq.
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