People v Roman

[*1] People v Roman 2010 NY Slip Op 51022(U) [27 Misc 3d 1233(A)] Decided on June 9, 2010 Supreme Court, Bronx County Duffy, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 9, 2010
Supreme Court, Bronx County

The People of the State of New York,

against

Yahaira Roman, Defendant.



4791-07



Adrienne A. Y. Giunta, Esq.

Assistant District Attorney

Office of Robert T. Johnson, Esq.

198 East 161st Street

Bronx, New York 10451

Jason Herman, Esq.

Assistant District Attorney

Office of Robert T. Johnson, Esq.

198 East 161st Street

Bronx, New York 10451

Kenneth J. Kaufmann, Esq.

Box 481

Bronxville, NY 10708

Attorney for Defendant

Colleen D. Duffy, J.

Defendant Yahaira Roman was charged, along with seven co-defendants,[FN1] in

a multiple count indictment with Attempted Murder in the Second Degree (PL § 110/125.25(1)), Gang Assault in the First Degree (PL § 120.07), Assault in the First Degree (PL § 120.05(1)), Assault in the Second Degree (PL § 120.05(2)), Burglary in the First Degree (PL § 140.30(2)), Burglary in the First Degree (PL § 140.30(3)), Burglary in the Second Degree (PL § 140.25(1)(b)), Burglary in the Second Degree (PL § 140.25(1)(c)), Burglary in the Second Degree (PL § 140.25(2)) and numerous misdemeanors. The People allege that, on November 9, 2007, Defendant, acting in concert with others, unlawfully entered the Bronx home of Carmen Cuevas and her [*2]daughter, Carmen Gomez, and that Defendant, acting in concert with others, assaulted and physically injured both of these individuals.

On March 18, 2008, Defendant Roman filed an omnibus motion seeking, among other things, to have the Court: (1) inspect the Grand Jury minutes and dismiss the indictment or reduce the charges; (2) suppress any statements of the Defendant; (3) suppress any identification of the Defendant; and (4) prevent the People from introducing any previous criminal convictions or bad acts of the Defendant if he were to testify.

People submitted an opposition, filed April 4, 2008, to Defendant's motion.

On May 2, 2009, the Honorable John S. Moore granted, in part, and denied, in part, Defendant's motion. Judge Moore, after inspection of the Grand Jury minutes, denied Defendant's motion to dismiss or reduce the charges in the indictment. With respect to Defendant's motion for a Wade hearing, the Court ordered a Rodriguez hearing to determine the extent of the witness's prior familiarity with Defendant. Judge Moore also granted Defendant's motion for a Dunaway hearing as well as for a Sandoval and a Ventimiglia hearing, to be conducted prior to jury selection.

On May 19, 2010, this Court held the Rodriguez-Dunaway hearing. At the hearing, Danny Gomez, son of Carmen Cuevas and sister of Carmen Gomez, testified on behalf of the People. Defendant called no witnesses.

After the Rodriguez portion of the hearing was completed, the hearing was adjourned until May 28, 2010, and then again to June 2, 2010, for Detective Kenneth Banker, Shield No. 282, of the 43rd Precinct, to testify.[FN2]

On June 2, 2010, the People stipulated that there was no police-arranged identification upon which Defendant's arrest was based. Defendant agreed that, based upon the People's stipulation, a Dunaway hearing was not necessary at this time. The Court ruled that it would re-open the hearing if any evidence or testimony at trial were elicited that indicated that there was a police-arranged identification procedure upon which Defendant's arrest or a witness' in-court identification of Defendant was based.

With respect to the Rodriguez hearing, the Court finds that Danny Gomez credibly testified that he and Defendant were well acquainted. Mr. Gomez testified that he met Defendant one to two months before the crime occurred, and that he saw Defendant almost every day during that time period at the apartment of her co-Defendant Vanessa Gomez. Mr. Gomez further testified that he was at co-Defendant Gomez's apartment on an almost daily basis to purchase marijuana and that he often remained in the apartment to smoke marijuana, and that during these visits Defendant Roman was usually in the apartment as well. Danny Gomez also testified that he was present when the alleged incident occurred, to wit, Defendant and the co-Defendants came to his mother's house and assaulted his mother and sister. [*3]

Based on the degree of familiarity between the witness and Defendant, there can be no dispute that the witness knew and could identify the Defendant such that there is no possibility that police action somehow played a role in the identification of Defendant by Danny Gomez. The Court therefore denies Defendant's motion to suppress any in-court identification of Defendant by Danny Gomez at trial.The following papers also were considered by the Court in deciding the motion: Notice of Motion, filed on March 18, 2008, and Affirmation of Kenneth J. Kaufmann, attorney for Defendant, in Support of Motion; Affirmation in Opposition by Adrienne A. Y. Giunta, Assistant District Attorney, filed on March 18, 2008.[FN3]

This constitutes the Decision and Order of this Court.

Dated: Bronx, New York

June 9, 2010

ENTER:

_________________________

HON. COLLEEN D. DUFFY

Supreme Court Justice

Distribution:

Adrienne A. Y. Giunta, Esq.

Assistant District Attorney

Office of Robert T. Johnson, Esq.

198 East 161st Street

Bronx, New York 10451

Jason Herman, Esq.

Assistant District Attorney

Office of Robert T. Johnson, Esq.

198 East 161st Street

Bronx, New York 10451

Kenneth J. Kaufmann, Esq.

Box 481

Bronxville, NY 10708

Attorney for Defendant Footnotes

Footnote 1: Prior to the hearing held on May 19, 2010, Johnny Serrano, one of the co-defendants, pled guilty to Burglary in the Second Degree as part of a plea agreement in exchange for a determination by the Court of Youthful Offender status and an indeterminate sentence of one to three years. That plea was vacated subsequently and, on June 2, 2010, he re-pled to Burglary in the Second Degree under a different sub-section of that Penal Law. On that date, he was sentenced to the original promised sentence.

On May 21, 2010, after the Rodriguez hearing had commenced, four other co-defendants each also pled guilty to Burglary in the Second Degree in exchange for a determination by the Court of Youthful Offender status and sentence promises for each. Another co-defendant pled guilty to Assault in the Second Degree in exchange for a sentence promise.

Footnote 2: On May 19, 2010, Det. Banker was scheduled to testify at the hearing. On that date, the People informed the Court that Det. Banker had informed them that he had been injured in his performance of his duties as a police officer and now was unable to attend court on that date. On May 28 and June 2, 2010, respectively, the People informed the Court that Det. Banker still was unable to attend court due to his injury. The Court found this constituted good cause to adjourn the proceedings. The next scheduled court date is June 21, 2010.

Footnote 3: The People's Affirmation in Opposition is stamped as "Received" by the Supreme Court Clerk's Office on March 18, 2007, the year presumably stamped in error.