People v Morgado

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People v Morgado 2013 NY Slip Op 34067(U) March 19, 2013 Supreme Court, Westchester County Docket Number: 12-1333 Judge: Lester B. Adler Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] FILED AND ENTERED ON~2013 SUPREME COURT: STATE OF NEW YORK COUNTY OF WESTCHESTER WESTCHESTER COUNTY CLERK THE PEOPLE OF THE STATE OF NEW YORK -againstMANUELA MORGADO, ., Defendant./ Indictment No.: 12-1333 ~IL~. ., : : ~I~ I .. . x ADLER. J. PEC!S!ON & ORDER """1t~ '':'ON! Defendant stands accused under Indictment No.:~ one count of murder in the second degree (Penal Law §125.25[1]). By notice of motion dated February 19, 2013, with accompanying affirmation and memorandum of law, defendant moves for omnibus relief. In response, the People have submitted an affirmation in opposition dated March 5, 2013, with accompanying memorandum of law. It is alleged that on or about and between the hours of 6:00 p.m. on September 30, 2012 and 10:30 a.m. on October 1, 2012, the defendant, Manuela Morgado, while in the vicinity of 1035 East Boston Post Road, Apt. 3-2, in the Village of Mamaroneck, New York, did intentionally cause the death of her four-year-old son, J.R. The motion is disposed of as follows: A. MOTION FOR DISCOVERY AND INSPECTION Defendanfs motion for discovery is granted to the extent provided for in Criminal Procedure Law Article 240. If any items set forth in CPL Article 240 have not been provided to the defendant pursuant to the consent discovery order in the instant matter, said items are to be provided immediately. [* 2] The People recognize their continuing duty to disclose exculpatory material (see Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.E.2d 215 and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.E.2d 104) at the earliest possible date. If the People are or become aware of any material which is arguable exculpatory but they are not willing to consent to its disclosure, they are directed to disclose such material to the Court for its in camera inspection and determination as to whether such will be disclosed to the defendant. The People also recognize their continuing duty to disclose any written or recorded statement of a witness whom they intend to call at trial or a pre-trial hearing regarding the subject matter of the testimony which is in their possession or control. Defendanfs motion for early discovery is denied (see CPL §§240.44 & 240.45). To any further extent, the application is denied as seeking material or information beyond the scope of discovery (see People v. Colavito, 87 N.Y.2d 423, 639 N.Y.S.2d 996, 663 N.E.2d 308; Matter of Brown v. Grosso, 285 A.D.2d 642, 729 N.Y.S.2d 492, Iv. denied 97 N.Y.2d 605, 737 N.Y.S.2d 52, 762 N.E.2d 930; Matter of Brown v. Appelman, 241A.D.2d279, 672 N.Y.S.2d 373; Matter of Catterson v. Jones, 229 A.D.2d 435, 644 N.Y.S.2d 573; Matter of Catterson v. Rohl, 202 A.D.2d 420, 608 N.Y.S.2d 696; Iv. denied 83 N.Y.2d 755, 613 N.Y.S.2d 127, 241 N.E.2d 279). B. MOTION FOR SANDOVALNENTIMIGLIA HEARING 1. Sancloval - Granted solely to the extent that a Sandoval hearing shall be held immediately prior to trial at which time: 2 [* 3] A. The People must notify the defendant of all specific instances of the defendant's prior uncharged criminal, vicious or immoral conduct of which the People have knowledge and which the People intend to use at trial for purposes of impeaching the credibility of the defendant (see CPL §240.43); and B. Defendant must then sustain her burden of informing the Court of the prior misconduct which might unfairly affect her as a witness in her own behalf (see People v. Malphurs, 111A.D.2d266, 489 N.Y.S.2d 102, /v. denied66 N.Y.2d 616, 494 N.Y.S.2d 1039, 485 N.E.2d 243). 2. Ventimiglia - The People's papers appear to indicate that they have no evidence of any prior bad acts of the defendant which they intend to introduce at trial. Accordingly, the request for a Ventimiglia hearing is denied at the current time. In the event that the People subsequently determine that they will seek to introduce such evidence, they shall so notify the Court and defense counsel and a Ventimiglia hearing (see People v. Ventimiglia, 52 N:V.2d 350, 438 N.Y.S.2d 261, 420 N.E.2d 59) shall be held immediately prior to trial to determine whether or not any evidence of uncharged crimes may be used by the People to prove their case in chief. The People are urged to make an appropriate decision in this regard sufficiently in advance of trial to allow any Ventimiglia hearing to be consolidated and held with the other hearings herein. C. MOTION TO STRIKE PREJUDICIAL LANGUAGE FROM INDICTMENT Denied. The language concluding the indictment merely identifies the defendanfs acts as public, rather than private wrongs and such language should not be stricken as prejudicial (People v. Winters, 194 A.D.2d 703, 599 N.Y.S.2d 293, Iv. denied 3 [* 4] 82 N.Y.2d 761, 603 N.Y.S.2d 1003, 624 N.E.2d 189; see People v. Gill, 164 A.D.2d 867, 599 N.Y.S.2d 376, appeal denied, 76 N.Y.2d 893, 561 N.Y.S.22d 555, 562 N.E.2d 880; People v. Garcia, 170 Misc. 2d 543, 647 N.Y.S.2d 355). The defendant's remaining contentions are without merit and his application is accordingly denied. D. MOTION TO QISMISS INDICTMENT FOR FACIAL INSUFFICIENCY Denied. The indictment contains a plain and concise factual statement in each count which, without allegations of an evidentiary nature, asserts facts supporting every element of the offense charged and the defendant's commission thereof with sufficient precision as to clearly apprise the defendant of the conduct which is the subject of the indictment (CPL §200.50). The indictment charges each and every element of the crimes, and alleges that the defendant committed the acts which constitute the crimes at a specified place during a specified time period and, therefore, Is sufficient on its face (People v. Iannone, 45 N.Y.2d 589, 412 N.Y.S.2d 110, 384 N.E.2d 656; People v. Cohen, 52 N.Y.2d 584, 439 N.Y.S.2d 321, 421 N.E.2d 813). E. MOTION TO INSPECT THE GRAND JURY MINUTES AND TO DISMISS AND/OR REDUCE THE INDICTMENT 3 Defendant moves pursuant to CPL §§210.20(1)(b) and (c) to dismiss the indictment, or counts thereof, on the grounds that the evidence before the Grand Jury was legally insufficient and that the Grand Jury proceeding was defective within the meaning of CPL §210.35. On consent of the People, the Court has reviewed the minutes of the proceedings before the Grand Jury. Pursuant to CPL §190.65(1), an indictment must be supported by legally sufficient evidence which establishes that the defendant committed the offenses 4 [* 5] charged. Legally sufficient evidence is competent evidence which, if accepted as true, would establish each and every element of the offense charged and the defendant's commission thereof (CPL §70.10[1)); People v. Jennings, 69 N.Y.2d 103, 115, 512 N.Y.S.2d 652, 504 N.E.2d 1079). "In the context of a grand jury proceeding, legal sufficiency means prims facie proof of the crimes charged, not proof beyond a reasonable doubt" (People v. Bello, 92 N.Y.2d 523, 526, 683 N.Y.S.2d 168, 705 N.E.2d 1209; People v. Ackies, 79 A.0.3d 1050, 1056, 914 N.Y.S.2d 211). In rendering a determination, "[t]he reviewing court's inquiry is limited to whether the facts, if proven, and the inferences that logically flow from those facts supply proof of each element of the charged crimes and whether the grand jury could rationally have drawn the inference of guilt" (Id., quoting People v. Boampong, 57 A.D.3d 794, 795, 869 N.Y.S.2d 586 [internal quotations omitted]). A review of the minutes reveals that the evidence presented, if accepted as true, would be legally sufficient to establish every element of the offense charged (see CPL §210.30(2]). Accordingly, defendant's motion to dismiss or reduce for lack of sufficient evidence is denied. The Court further finds that the Grand Jury proceeding was not defective within the meaning of CPL §210.35. A review ofthe minutes supports a finding that a quorum of the grand jurors were present during the presentation of evidence and at the time the district attorney instructed the Grand Jury on the law, that all 21 of the grand jurors who voted to indict heard all the "essential and critical evidence" (see People v. Collier, 72 N.Y.2d 298, 300, 532 N.Y.S.2d 718, 528 N.E.2d 1191; People v. Perry, 199 A.D.2d 5 [* 6] 889, 890, 605 N.Y.S.2d 790, appeal denied 83 N.Y.2d 856, 612 N.Y.S.2d 388, 634 N.E.2d 989; People v. Julius, 300 A.D.2d 167, 751 N.Y.S.2d 486, Iv. denied 99 N.Y.2d 655, 760 N.Y.S.2d 120, 790 N.E.2d 294), and that the Grand Jury was properly instructed (see People and People v. v. Ca/bud, 49 N.Y.2d 389, 426 N.Y.S.2d 389, 402 N.E.2d 1140 Valles, 62 N.Y.2d 36, 476 N.Y.S.2d 50, 464 N.E.2d 418). The Court does not find that release of the Grand Jury minutes or certain portions thereof to the parties was necessary to assist the Court in rendering a determination. In the absence of a showing of a compelling and particularized need for disclosure of the minutes of the Grand Jury proceeding, defendanrs motion for release thereof is denied (see People v. Robinson, 98 N.Y.2d 755, 751 N.Y.S.2d 843, 781 N.E.2d 908). F. MOTION FOR A BILL OF PARTICULARS Defendant moves for an order compelling the People to provide her with a supplemental bill of particulars on the ground that the bill of particulars previously provided by the People in response to defendanrs timely request fails to adequately amplify the indictment. In New York, an indictment serves three purposes: 1) "to provide [a] defendant with sufficient information regarding the nature of the charge and the conduct which underlies the accusation to allow him or her to prepare or conduct a defense" (People v. Morris, 61 N.Y.2d 290, 293, 473 N.Y.S.2d 769, 461 N.E.2d 1256; see also People v. Iannone, 45 N.Y.2d 589, 412 N.Y.S.2d 110, 384 N.E.2d 656; People v. Fitzgerald, 45 N.Y.2d 574, 412 N.Y.S.2d 102, 384 N.E.2d 602, rearg. denled46 N.Y.2d 837, 414 6 [* 7] N.Y.S.2d 1055, 386 N.E.2d 1105); 2) a means of ensuring that the crime for which the defendant is tried is in fact one for which he was indicted "rather than some alternative seized upon by the prosecution" (Id.); and 3) to protect an individual charged with a crime from prosecution at another time for the same offense (People v. Sanchez, 84 N.Y.2d 440, 445, 618 N.Y.S.2d 887, 643 N.E.2d 509). Such information need not be contained in a single document, and may be provided by a bill of particulars (Fitzgerald, 45 N.Y.2d at 580; see also CPL §200.95). A bill of particulars is defined as •a written statement by the prosecutor specifying * * * items of factual information which are not recited in the indictment and which pertain to the offense charged and include the substance of each defendanfs conduct encompassed by the charge which the people intend to prove at trial on their direct case" (CPL §200.95[1](a]). The People are only required to include information in the bill of particulars as to the theory that will be advanced at trial (see Fitzgerald, 45 N.Y.2d at 580), not information as to the evidence that will be used to prove that theory (CPL §200.95[1][a]). Here, the bill of particulars set forth in the consent discovery order provided to defendant has adequately informed her of the substance of her alleged conduct and in all respects complies with CPL §200.95. G. MOTION TO PRECLUDE NOTICED STATEMENTS Denied. The language in the notice served by the People in accordance with CPL §710.30 informed the defendant ofthe time and place that the statement was made and of the sum and substance of that statement (CPL §710.30(1]; see People v. 7 [* 8] Lopez, 84 N.Y.2d 425, 618 N.Y.S.2d 879, 643 N.E.2d 501; People v. Hartley, 224 A.D.2d 712, 638 N.Y.S.2d 924; appealdenied90 N.Y.2d 858, 661N.Y.S.2d185, 683 N.E.2d 1059). There is no requirement that the substance of a statement must be recited verbatim (see People v. Steisi, 257 A.D.2d 582, 683 N.Y.S.2d 578; Iv. denied 93 N.Y.2d 979, 695 N.Y.S.2d 66, 716 N.E.2d 1111). In the affinnation in opposition, the People contend that defendant has waived her right to challenge the sufficiency of the CPL §710.30 notices by moving in the alternative to suppress the statements. However, a defendant may move in the alternative to suppress without waiving a preclusion claim, so long as the suppression claim is not litigated to a final detennination (see People v. Kirkland, 89 N.Y.2d 903, 653 N.Y.S.2d 256, 686 N.E.2d 230; People v. Smith, 283 A.D.2d 189, 724 N.Y.S.2d 598, Iv. denied 97 N.Y.2d 643, 735 N.Y.S.2d 500, 761 N.E.2d 5; People v. Figueroa, 278 A.D.2d 139, 717 N.Y.S.2d 592, Iv. denied 96 N.Y.2d 758, 725 N.Y.S.2d 285, 748 N.E.2d 1081).1 H. MOTION TO SUPPRESS NOTICED STATEMENTS This branch of defendanrs motion is granted to the extent that a Huntley hearing shall be held prior to trial to detennine whether any and all statements allegedly made by her, which have been noticed by the People pursuant to CPL §710.30(1)(a), were 1 As noted by the Hon. John J. Brunetti: •some may read Kirkland as holding that a defendant waives preclusion by merely moving for suppression after denial of his motion to preclude. That Is not the law. All Kirkland holds is that litigation of a suppression claim to a final order denying suppresslon on Its merits will waive any right to appeal the denial of a preclusion claim Interposed prior to the litigation of the suppression claim• (Brunetti, New York Confessions, Ch. 6, p. 268-269 [Gould Publishing 1" Ed.)). 8 [* 9] involuntarily made within the meaning of CPL §60.45 (see CPL §710.20(3); CPL §710.60[3)[b]; People v. Weaver, 49 N.Y.2d 1012, 429 N.Y.S.2d 399, 406 N.E.2d 1335), and/or were obtained in violation of the physician-patient prMlege (see People v. Decina, 2 N.Y.2d 133, 157 N.Y.S.2d 558, 138 N.E.2d 799). I. MOTION TO STRIKE IDENTIFICATION Denied. Defendant's identity is not in issue, and the identification was made by the superintendent of her building (see People v. Rodriguez, 79 N.Y.2d 445, 583 N.Y.S.2d 814, 593 N.E.2d 268; People v. Gissendanner, 48 N.Y.2d 543, 423 N.Y.S.2d 893, 3g9 N.E.2d 924). J. MOTION TO CONDUCT PRE-TRIAL HEARINGS 20 DAYS IN ADVANCE OF TRIAL Defendant's motion to schedule pre-trial hearings 20 days prior to trial is denied. The hearings will be scheduled at a time that is convenient to the Court, upon due consideration of all of its other cases and obligations. The foregoing constitutes the Decision and Dated: White Plains, New York March 19, 2013 THE LEGAL AID SOCIETY OF WESTCHESTER COUNTY Attorneys for Defendant One North Broadway, Ninth Floor White Plains, New York 10601 BY: Saad Siddiqui, Esq. HON. JANET DiFIORE District Attorney, Westchester County 9

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