People v Hubsher
Annotate this CaseDecided on December 4, 2013
Supreme Court, Nassau County
People of the State of New York,
against
Marshall Hubsher, Defendant.
2049N-12
KATHLEEN RICE
District Attorney
Nassau County
Mineola, New York
By Cristina Colon, Esq.
Benjamin Brafman, Esq.
Attorney for the Defendant
26th Floor
767 Third Avenue
New York, NY 10017
Angelo A. Delligatti, J.
The following papers read on this motion: 3
Notice of Motion.............................1
Affirmation in Response.................1
Reply...............................................1
The defendant by motion dated April 4th 2013 moves this court for various relief including a dismissal of the indictment on the ground the Grand Jury proceeding was defective.
The defendant's omnibus motion is hereby determined as follows:
The Court has inspected the Grand Jury minutes for the purpose of determining the legal sufficiency of the evidence to support the indictment (CPL § 210.30) and the adequacy of the [*2]legal instructions to the Grand Jury (CPL § 210.35[5] and 190.25[6]) and finds that it is not necessary to release the minutes or any portion thereof to the defendant's attorney to assist the Court in making its determination. (CPL § 210.30[3]).
Upon inspection of the minutes, this Court finds that the evidence before the Grand Jury was legally sufficient to establish the crimes charged in the indictment.
The Grand Jury proceeding was not defective. Proper legal advice and adequate instructions were given by the Assistant District Attorney. (CPL § 210.35[5] and 190.35[6]).
The Court finds that there are no grounds upon which to dismiss the indictment or any count thereof. See People v Galatro, 84 NY2d 160 (1994)
Specifically as to the defendant's application to dismiss the indictment on the ground that the Grand Jury presentation was defective, the court heard oral arguments on October 17, 2013.
It is alleged that the complaining witness consulted with the defendant, a psychiatrist on March 29, 2012. The complaining witness saw the defendant again on April 3, 2012 at which time the complaining witness and the defendant had a sexual encounter, in the defendant's treatment office. The defendant in his moving papers alleges that the April 3, 2012 meeting was an unscheduled appointment and not a treatment session. The complaining witness by her Grand Jury testimony denies that allegation. At that second meeting the defendant also "loaned" the complaining witness $2600.00 which she needed for her rent. The complaining witness also alleged that the defendant took her completely by surprise and told her that the sexual encounter was part of her treatment. The testimony in the Grand Jury was, in the light most favorable to the people, clearly sufficient to support the penal law violation alleged in the indictment.
At issue is the prosecutor's decision not to be put before the Grand Jury an alleged "promissory note" signed by the complaining witness promising to repay the loan by December of 2012.
The writing in question is on the defendant's letterhead dated April 3, 2012 and reads as follows:
"I am not now, nor will I be in the future, a patient of Dr. Hubsher.
I owe Marshall Hubsher $2600 and will pay this debt by Dec 1, 2012.
I received this check today April 3, 2013."
The people declined to offer the document at the Grand Jury proceeding because they state that when the note was shown to the complaining witness (outside the Grand Jury room)she stated that the first line "I am not now, nor will I be in the future, a patient of Dr. Hubsher" was not there when she signed the paper.
She was, however, questioned before the Grand Jury about the "loan", the signing of the note and the receipt and cashing of the check. She also testified that the defendant never gave her a copy of the signed document.
The defendant argues that it was prosecutorial misconduct for the Assistant District Attorney not to offer the note itself for the consideration of the Grand Jury. In the opinion of the defendant the complaining witness could have then testified about the alleged "added" language.
The defendant relies on People v. Goldstein, 73 AD3d 946 (2d Dept. 2010),in which the Appellate Division Second Department dismissed an indictment charging that defendant with grand larceny for failing to offer the Grand Jury the actual contract in question as to allow the Grand Jury to better evaluate the complainants testimony. This court distinguishes the instant case from Goldstein in that in Goldstein the original contract was in fact the corpus of the crime of grand larceny by fraud. In the instant case the writing in question merely supports the [*3]defendant's defense. The defendant could have put this defense before the Grand Jury by exercising his right to testify and he is free to offer said defense to the jury at the trial of this indictment.
This court concludes that the people are not required to present any and all information that the defendant submits in support of his defense. The Assistant District Attorney properly used her discretion in the use of the promissory note and the doctors patient notes (see People v. Mitchell 82 NY 2d 509, 605 NYS 655 (1993).
The defendant's motion to dismiss is therefore denied.
As to that portion of the defendant's motion seeking Court ordered discovery:
The defendant's request for discovery is improperly contained in this application. The procedure set forth in the Criminal Procedure Law Section 240.40 provides for court ordered discovery only after a prosecutor has refused to supply information or items sought pursuant to a demand previously filed by the defendant. The service of a demand is required in the first instance and then, if the people do not adequately respond, the defendant may bring a motion to compel discovery of the items to which he feels that he is entitled. However, this Court immediately prior to pretrial hearings will revisit this issue.
Accordingly, the defendant's motion for Court ordered discovery is hereby denied.
The Court advises the People of their continuing obligations under Brady v. Maryland, 373 US 83 (1963) and that portion of the defendant's application seeking prior criminal history of potential witnesses is hereby denied as not yet ripe for consideration. See Giglio v. Unites States, 405 US 150 (1972)
As to that portion of the defendant's motion seeking a Sandoval Hearing is hereby
granted, to the extent that a hearing will be held immediately prior to trial.
The remainder of the defendant's motion is hereby denied in its entirety.
This shall constitute the Decision and order of this Court.
E N T E R:
Dated: December 4, 2013_______________________________
Angelo A. Delligatti, A.J.S.C.
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