People v Owoyemi
Annotate this CaseDecided on March 31, 2010
Criminal Court of the City of New York, Kings County
The People of the State of New York,
against
Nicholas A. Owoyemi, Defendant.
2009KN100774
For the People
Kings County District Attorney's Office
Hon. Charles J. Hynes
350 Jay Street
Brooklyn, New York 11201
By: Howard Feldberg, Esq.
Assistant District Attorney
For the Defense
Nelson W. Schmukler, Esq.
288 Atlantic Avenue
Brooklyn, New York 11201
Gerri Pickett, J.
Motion granted in part. Defendant's request for a Ventimiglia hearing and a bill of particulars is denied. The request for a reservation of rights is granted.
On December 20, 2009, under docket 2009KN100774, defendant was arraigned and
charged with assault in the third degree and other crimes. On January 18, 2010, under docket 2010KN004702, defendant was arraigned and charged with criminal contempt in the second degree and other offenses. On June 16, 2010, the dockets were consolidated under docket 2009KN100774. Now, in a an omnibus motion dated, December 15, 2010, defendant Nicholas A. Owoyemi, seeks an order granting (1) a Ventimiglia hearing, (2)a Bill of Particulars, (3) a reservations of rights, and (4) for such other and further relief as this court may seem just and proper.
Findings of Fact
Prior to trial, the People made a Molineux application to include evidence on their direct case of the defendant's prior uncharged bad acts. In their Molinuex application, the People alleged that in September and October of 2009, the defendant physically assaulted the [*2]complainant, Margaret Muhleder. The People based their application on the theory that the prior acts show that the incident underlying the current case before the court was not, and could not be considered a mistake or a one-time occurrence in the heat of the moment. Following arguments on both sides, the court ruled that both prior uncharged bad acts by the defendant were admissible at trial. At the conclusion of the hearing, defense counsel requested an adjournment to investigate the two incidents. The court adjourned the case January 24, 2011 to allow defense counsel time to investigate these incidents. On December 15, 2010, defense counsel served and filed the instant omnibus motion. The People served and filed their response to the omnibus motion on January 24, 2011.
Defendant's Argument In his motion, defendant contends that when the People made a Molineux
application to allow the complainant to testify about two prior uncharged incidents of domestic violence, a Ventimiglia hearing was required on the issue of the admissibility of the testimony before the court could allow admission of the evidence (see People v Ventimiglia , 52 NY2d 350, 362 [1981]). To support this argument, defense counsel relied on the holding in People v Burke (170 AD2d 1021 [1991]), which decided that the trial court in that case should have held a Ventimiglia hearing prior to allowing the prosecution to make several unsubstantiated and false claims about the defendant during summation.
Defense counsel further argues that although he requested an adjournment to investigate the incidents, the prosecution has only provided him with photographs and has not given him the dates and location of the two incidents. Defendant further argues that since the complainant neither reported the incidents nor sought medical help, the potential prejudice to the defendant far outweighs the evidence's probative value. Therefore, a Ventimiglia hearing is necessary to determine the theory upon which the People seek to offer the evidence, its probative value, relevancy and weight against prejudice to the defendant.
People's Argument
The People oppose the motion, arguing that the matter was decided by the court when it heard arguments from both sides and issued its ruling that the evidence was admissible at trial.
Therefore, no other pre-trial procedure is necessary in this case.
Conclusions of Law
1. Ventimiglia Hearing
Under Molinuex, evidence of prior uncharged crimes or bad acts, are inadmissible if
they are offered for the purpose of raising an inference that the defendant must have committed the crime he is now being charged with (see People v Molineux,168 NY 264, 292-294 [1901]). However, such evidence may be admitted if it is offered to establish (1) motive; (2) intent; (3) knowledge, (4) a common scheme or plan, or (5) establish the identity of the defendant (see People v Kocyla,167 AD2d 938, 939 [1990]). However, in order to have the evidence admitted at trial, the People must first obtain a pre-trial ruling on its admissibility to ensure that the evidence is probative, relevant and would not prejudice the defendant.
In Ventimiglia, the court held that the evidence should be presented to the court either as "an offer of proof by counsel or preferably by presenting the live testimony of the witness" [*3](Ventimiglia at 362]) (emphasis added). The Ventimiglia court did not mandate a hearing. Under Ventimiglia, the People are required to notify the court and defendant of their intent to introduce the evidence as part of the case-in-chief and identify the basis upon which they consider it admissible (Id. at 362). The court then must assess how the evidence came into the case, its relevance, probative value against prejudicing the defendant. After considering the evidence, the court can either admit or exclude it in total, or admit it without the prejudicial part if that can be done without distorting its meaning (see People v Holmes, 260 AD2d 942, 943 [1999]).
In the Burke case, the court held that with all the false and unsubstantiated claims made by the prosecution during summation, the trial court should have held a Ventimiglia hearing prior to allowing the prosecution to make those claims (People v Burke, supra at 1022). Here, the People made a Molineux application whereupon they advised the court the basis upon which they were making the application and how they obtained the evidence. The court then assessed the evidence by weighing its probative value and relevancy against any prejudice against the defendant.
Since a hearing was held on the admissibility of the two prior uncharged crimes, defendant's motion seeking a Ventimiglia hearing is denied.
2. Demand for Bill of Particulars
The sole function of a bill of particulars is to define more specifically the crime or crimes charged in the indictment or to provide clarification of matters set forth in the accusatory instrument (see Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 200.95). A bill of particulars is not a discovery device (see People v Davis, 41 NY2d 678, 679-680 [1977]). With respect to a bill of particulars, a defendant is only entitled to information that will apprize him or her of the theory the prosecution intend to advance at trial (see People v Fitzgerald, 45 NY2d 574 [1978]). In pertinent part, CPL 200.95 (1) (a) states that bill of particulars are written statements made by the prosecution specifying "items of factual information which are not recited in the indictment and which pertain to the offence charged...." (emphasis added).
There is no case law nor statutory law that provides for discovery of uncharged crimes offered pursuant to a Molineux application. Therefor, defendant's motion seeking a bill of particulars under a Molineux application is denied.
3. Reservations of Rights
The defendant's motion seeking a reservation of right to make further motions is granted to the extent provided in CPL 255.30 [3].
Conclusion
Defendant's omnibus motion is granted in part. The portion of defendant's motion seeking a Ventimiglia hearing and a bill of particulars is denied. The branch of defendant's motion seeking a reservation of rights is granted.
The foregoing constitutes a decision and order of this court. [*4]
________________________________
Hon. Gerri PickettJudge of the Criminal Court
Dated: Brooklyn, New YorkMarch 31, 2010
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
