People v Robinson

[*1] People v Robinson 2009 NY Slip Op 52341(U) [25 Misc 3d 1229(A)] Decided on November 4, 2009 Supreme Court, New York County Sonberg, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 4, 2009
Supreme Court, New York County

The People of the State of New York

against

Connie Robinson, Defendant.



3140/2009



For the People:

BRIDGET G. BRENNAN, ESQ.

Special Narcotics Prosecutor for the

City of New York

80 Centre Street

New York, NY 10013

(212) 815-0118

Michael Clarke, Esq.

Of Counsel

For the Defendant:

GEOFFREY STEWART, ESQ.

350 Broadway, Suite 700

New York, NY 10013

(212) 625-9696

Michael R. Sonberg, J.

Defendant's motion to inspect the grand jury minutes is granted to the extent that the court has conducted an in camera inspection of the minutes. Based upon that inspection, I find that the evidence before the grand jury was legally sufficient to establish the offenses of criminal sale of a controlled substance in the third degree as charged in counts 1, 2, and 3 and that the defendant committed said offenses (see CPL § 190.65, CPL § 210.30). Defendant's motion to dismiss or reduce those counts is therefore denied. Additionally, I find that the instructions on the law given to the grand jury were legally sufficient and that there were no procedural defects in the presentation. Defendant's motion for release the grand jury minutes is denied.

However, the evidence presented to the grand jury fails to establish a prima facie case of [*2]the defendant's commission of the crime of criminal nuisance in the first degree (PL § 240.46) as charged in counts 4 and 5. Under PL § 240.46, a person is guilty of this crime when he or she "knowingly conducts or maintains any premises, place or resort where persons come or gather for purposes of engaging in the unlawful sale of controlled substances . . . and thereby derives the benefit from such unlawful conduct." As the Court of Appeals held in construing the predecessor statute, former Penal Law § 1533 (2), in People v Fiedler, 31 NY2d 176 (1972), the statute was intended to proscribe the creation and maintenance of facilities used with some degree of regularity. In Fiedler, the court held that evidence that parents let their children use marijuana and hashish in the family home was insufficient to prove more than "an isolated misuse," which was not contemplated by the statute and that the statute "contemplates some time span and resort to the premises by habitutes with some degree of regularity." 31 NY2d at 181. Cf. People v Monday, 309 AD2d 977 (3d Dept 2003) (evidence that drugs had been sold from defendant's trailer for two months sufficient to support defendant's conviction of criminal nuisance). As the evidence before the grand jury indicates that on June 3, 2009, defendant engaged in a single sale of narcotics with an undercover officer in her home, it is legally insufficient to prove that defendant was maintaining a place for illegal purposes. Similarly, the evidence before the grand jury indicates that on June 9, 2009, defendant engaged in one sale of narcotics in co-defendant Edna Lopez's apartment and then handed some of the United States currency to co-defendant Edna Lopez. Accordingly, counts four and five of the indictment are dismissed with leave for the People to represent those counts.

Although the People served identification notice pursuant to CPL § 710.30 (1) (b), they contend that the identification procedure utilized was merely confirmatory. Accordingly, a limited Wade hearing to determine whether the procedure was confirmatory is ordered pursuant to People v Wharton, 74 NY2d 921 (1989); People v Newball, 76 NY2d 587 (1990); People v Mato, 83 NY2d 406 (1994); People v Williams, 85 NY2d 868 (1995). In the event the procedure is determined not to have been confirmatory, a Wade hearing is ordered. A Gethers hearing [(People v Gethers, 86 NY2d 159 (1995)] is ordered to determine if the identification, whether or not confirmatory in nature, should be suppressed as the product of an illegal detention or arrest.

Defendant's motion for a Dunaway/Mapp hearing is granted only as to tangible evidence recovered from defendant's person.

Defendant's motions to compel discovery pursuant to Article 240 are premature. The law requires that the defendant initially submit a request for a bill of particulars and a demand for discovery to the District Attorney. Should the District Attorney refuse to respond to any particular request, the defendant may then move to compel disclosure of the item of information the District Attorney refused to provide. There is no allegation that the District Attorney has declined to respond to defendant's request.

Accordingly, this portion of the defendant's omnibus motion is denied without prejudice to renew upon the District Attorney's refusal to disclose information required by law to be disclosed. Upon renewal of the motion, the defendant must (1) specify the item(s) of information which the District Attorney has not disclosed, (2) warrant that such information is relevant and applicable to this case, and (3) specify the provision of law or authority requiring disclosure of such information.

Defendant's motion for a Ventimiglia and Sandoval hearing is respectfully referred to the [*3]trial court.

Defendant's motion made pursuant to Brady v Maryland, 373 US 83 (1963) is granted. The People are reminded of their continuing obligation under Brady.

This constitutes the decision and order of the court.

Dated:New York, New York

November 4, 2009

MICHAEL R. SONBERG, J.S.C.