People v Adeghe

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People v Adeghe 2017 NY Slip Op 33008(U) May 26, 2017 County Court, Westchester County Docket Number: 16-1033 Judge: Anne E. Minihan Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] FILED AND ENTERED COUNTY COURT: STATE OF NEW YORK COUNTY OF WESTCHESTER ON 5-j0.. 2017 ----~-----------------------~---~----------r.:-rr-~¥~~-----------)( WESTCHESTER THE PEOPLE OF THE STATE Ol!f'!iilil::kbRK -againstSHEPPARD ADEGHE, MAY 3 0 2017 " TIMOTHY C. IDONI COUNTY CLERK COUNTY OF WESTCHESTER DECISION & ORDER Indictment No.:16-1033 Defendant. ------------------------------------------------------------------)( MINIHAN, J. Defendant, SHEPPARD ADEGHE, having been indicted on or about September 15, 2016 for Murder in the Second Degree (Penal Law § 125 .25 [ 1]) and Criminal PossessiOn of a Weapon in the Second Degree (Penal Law§ 265.03 [3]) has filed an omnibus motion which consists of a Notice of Motion and an Affirmation in Support. In response, the People have filed an Affirmation in Opposition together with a Memorandum of Law. Upon consideration of these papers, the stenographic transcript of the grand jury minutes and the Consent Discovery Order entered in this case, this court disposes of this motion as follows: A.&R. MOTION to INSPECT, DISMISS and/or REDUCE CPL ARTICLE 190 T~e court grants the defendant's motion to the limited extent that the court has conducted, with the consent of the People, an in camera inspection of the stenographic transcription of the grand jury proceedings. Upon such review, the court finds no basis upon which to grant defendant's application to dismiss or reduce the indictment. Defendant's request to dismiss the indictment in the interests of justice is denied. The defendant has cited no persuas~ve or compelling factor, consideration or circumstances under CPL 210.40 warranting dismissal of this indictment. In reaching a decision on the.motion, the court has examined the factors listed in CPL 210.40, which include, in relevant part, the seriousness and circumstances of the offense; the extent of harm caused by the offense; the evidence of guilt; the history, character and condition of the defendant; any exceptionally serious misconduct of law enforcement personnel; the purpose and effect of imposing upon the defendant a sentence authorized for the charged offenses; the potential impact of a dismissal on public confidence in the judicial system; the potential impact of dismissal upon the safety 3;nd welfare of the community; and other relevant facts suggesting that a conviction would not serve a useful purpose. Having done so, the court has discerned no compelling factor, consideration or circumstance which clearly demonstrates that further prosecution or conviction of the defendant would constitute or result in injustice. Accordingly, the defendant's motion to dismiss in the interest of justice is denied. [* 2] The indictment contains a plain and concise factual statem.ent 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 Cohen, 52 NY2d 584 [1981]; People v Iannone, 45 NY2d 589 [1978]). The grand jury was properly instructed (see People v Calbud, 49 NY2d 389 [1980]; People v Valles, 62 NY2d 36 [1984]; People v Burch, 108 AD3d 679 [2d Dept 2013]). The evidence presented, if accepted as true, is legally sufficient to dtablish every element of each offense charged (CPL 210.30[2]). "Courts assessing the sufficiency of the evidence before a grand jury must evaluate whether the evidence~ viewed most favorably to the People, if unexplained and uncontradicted--and deferring all questions as to the weight or quality of the evidence--would warrant conviction" (People v Mills, 1 NY3d 269, 274-275 [2002]). Legally sufficient evidence means competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof (CPL 70.10[1]; see People v Flowers, 138 AD3d 1138, 1139 [2d Dept 2016]). "In the context ofa Grand Jury proceeding, legal sufficiency means prima facie proof of the crimes charged, not proof beyond a reasonable doubt" (People-v Jessup, 90 AD3d 782, 783 [2d Dept 2011]). "The reviewing court's inquiry is limited to whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crimes, and whether the Grand Jury could rationally have drawn the guilty -inference. That other, innocent inferences could possibly be drawn from those facts is irrelevant to the sufficiency inquiry as long as the Grand Jury could rationally have drawn the guilty inference" (People v Bello, 92 NY2d 523, 526 [1998]). Additionally, the minutes rev~al a quorum of the grand jurors was present during the presentation of evidence, that the Assistant District Attorney properly instructed the grand jury on the law, and only permitted those grand jurors who heard all the evidence to vote the matter. Based upon the in camera review, since this court does not find release of the grand jury minutes or any portion thereof necessary to assist it in making any determinations and as the defendant has not set forth a compelling or particularized need for the production of the grand jury minutes, defendant's . application for a copy of the grand jury minutes is denied (People v Jang, 17 AD3d 693 [2d Dept 2005]; CPL 190.25[4][a]). Defendant's argument that the indictment should be dismissed claiming the People failed to instruct the grand jury concerning certain defenses and failed to disclose the prior convictions of a witness is denied. A Grand Jury is not a Petit Jury, and the Grand Jury is to investigate crimes and to . determine whether sufficient evidence exists to accuse a citizen of a crime (People v Thompson, 22 NY3d 687 [2014]). The People, in the dual role of legal advisor, may decline to instruct the Grand Jury about a variety of defenses (People v Thompson, 22 NY3d 687 [2014]) and need only charge the defenses that could possibly eliminate unfounded prosecution (People v Valles, 62 NY2d 36, 38 [1984]). 2 [* 3] C. MOTION to SUPPRESS IDENTIFICATION TESTIMONY CPLARTICLE 710 This motion is granted to the limited extent of that a hearing shall be held prior to trial to determine whether the identifying witnesses had a sufficient prior familiarity with the defendant as to render them impervious to police suggestion (People v Rodriguez, 79 NY 2d 445 (1992]). In the event the Court finds that there was not a sufficient prior familiarity with the defendant on the part of the witness, the Court will then consider whether or not the five noticed identifications on August 11, 2016, August 12, 2016, August 15, 2016, August 29, 2016 and September 8, 2016 were unduly suggestive (United States v Wade, 388 US 218 (1967]). Specifically, the Court shall determine whether the identifications were so improperly suggestive as to taint any in-court identification. In the event the identifications are found to be unduly suggestive, the Court shall then go on to consider whether the People have proven by clear and convincing evidence that an independent source exists for such witness' proposed in-court identification. D. MOTION to DISMISS UNNOTICED STATEMENTS In the absence of a late notice, defendant's motion to preclude unnoticed statements is denied as premature. The People acknowledge the requirements of CPL 710.30. E. MOTION to SUPPRESS EVIDENCE or FOR HEARING to DETERMINE PROBABLE CAUSE Defendant's motion to suppress evidence seized from defendant in Scotland, or in the alternative for a hearing on the issue of probable cause is denied. On August 30, 2016, defendant was charged with murder in the second degree via felony complaint in Yonkers City Court an arrest warrant was issued by the court (Martinelli, J.) After learning that defendant fled the state flying to Amsterdam, New York, on September 1, 2016,·Scottish authorities issued an apprehension warrant Pursuant to the Extradition Act of 2013. On September 2, 2016, defendant was arrested by Scottish authorities .. The basis of the Scottish seizure was triggered by the City of Yonkers arrest warrant and information provided by the American authorities. On September 9, 2016, the Grand Jury voted on a true bill and on September 15, 2016 the indictment was filed with this court. The court (Cacace, J.) issued a warrant for defendant's arrest. Defendant has failed to set forth sworn allegations of fact in support of suppression and has failed to demonstrate that a hearing is warranted (People v Pavesi, 144 Ad2d 392 [2d Dept 1988]). The arrest warrant was disclosed to defendant and he does not challenge the legitimacy of the arrest warrant, permitting this court to presume that it was based on probable cause (see People v Paige, 16 NY3d 816 (2011 ]). In any event, the Yonkers City Court arrest warrant wa:s issued based on a judicial 3 [* 4] determination after a felony complaint was filed. The allegations \lave since been reviewed by a Grand Jury which resulted in the instant indictment. A review of the minutes by this court reveals that 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 Cohen, 52 NY2d 584 [1981]; People v Iannone, 45 NY2d 589 [1978]). The defendant has also failed to demonstrate a legal basis for suppression or that the exclusionary rule is implicated in this case since the items (credit card, passport and identifying information) were seized by Scottish authorised (People v Smith, 283 AD2d 189 [1st Dept 2001 ]). F. MOTION for DISCOVERY, DISCLOSURE and INSPECTION CPL ARTICLE 240 The parties have entered into a stipulation by way of a Consent Discovery Order consenting to the enumerated discovery in this case. Defendant's motion for discovery is granted to the extent provided for in Criminal Procedure Law Article 240. If there are any further items discoverable pursuant to Criminal Procedure Law Article 240 which have not been provided to defendant pursuant to the . Consent Discovery Order, they are to be provided forthwith. As to the defendant's demand for exculpatory material, the People have acknowledged their continuing duty to disclose exculpatory material at the earliest possible date upon its discovery (see Brady v Maryland, 373 US 83 [1963]; Giglio v United States, 405 US 150 [1972]). The People have also acknowledged their duty to comply with People v Rosario, (9 NY2d 286 [1961]). In the event that the People are or become aware of any material which is arguably exculpatory and they are not willing to consent to its disclosure to-the defendant, they are directed to immediately disclose such material to the Court to permit an in camera inspection and determination as to whether such must be disclosed to the defendant. The People recognize their continuing duty to disclose the terms of any deal or agreement made between the People and any prosecution witness at the earliest possible date (see People v Steadman, 82 NY2d 1 [1993]; Giglio v United States, 405 US 150 [1972h Brady v Maryland, 373 US 83 [1963]; People v ·Wooley, 200 AD2d 644 [2d Dept 1994]). Defendant's motion for a further Bill.of Particulars is denied. The Bill of Particulars set forth in the Consent Discovery Order provided to the defendant has adequately informed·the defendant of the substance-of his alleged conduct and in all respects complies with CPL 200.95. Except to the extent that the defendant's application has been specifically granted herein, it is otherwise denied as seeking material or information beyond the scope of discovery (see People v Colavito, 87 NY2d 423 [1996]; Matter of Brown v Grosso, 285 AD2d 642 [2d Dept 2001]; Matter of Brown v Appelman, 241AD2d279 [2d Dept 1998]; Matter of Catterson v Jones, 229 AD2d 435 [2d Dept 1996]; Matter of Catterson v Rohl, 202 AD2d 420 [2d Dept 1994]). 4 [* 5] G. ,;·· MOTION for SANDOVAL and VENTIMIGLIA HEARINGS Defendant has moved for a pre-trial hearing to permit the trial court to determine the extent, if at all, to which the People may inquire into the defendant's prior criminal convictions, prior uncharged criminal, vicious or immoral conduct. The People have consented to a Sandoval hearing. Accordingly, it is ordered that immediately prior to trial a hearing shall be conducted pursuant to People v Sandoval (34 NY2d 3 71 [ 1974 ]). At said hearing, the People shall be required to notify the defendant of all · specific instances of his criminal, prior uncharged criminal, vicious or immoral conduct of which they have knowledge and which they intend to use in an attempt to impeach the defendant's credibility ifhe elects to testify at trial (CPL 240.43). At the hearing, the defendant shall bear the burden of identifying any instances of his prior misconduct that he submits the People should not be permitted to use to impeach his credibility. The defendant shall be required to identify the basis of his belief that each event or incident may be unduly prejudicial to his ability to testify as a witness on his own behalf (see People v Matthews, 68 NY2d 118 [1986]; People v Malphurs, 111AD2d266 [2d Dept 1985]). Defendant's application for a hearing, pursuant to People v Ventimiglia (52 NY2d 350 [1981]) is denied since the People haye not indicated an intention to use evidence of any prior bad act or uncharged crimes of the defendant during its case in chief (see People v Molineaux, 168 NY2d 264 [1901]). If the People move to introduce such evidence, the defendant may renew this aspect of his motion. The foregoing constitutes the opinion, decision and order of this Court. Dated: White Plains, New York M~ ,2017 Westchester County Court Justice To: HON. ANTHONY A. SCARPINO, Jr. District Attorney, Westchester County 111 Dr. Martin Luther King, Jr. Boulevard White Plains, New York 10601 BY: James P. Tobin, Esq. Assistant District Attorney Stephen J. Riebling Jr., Esq. Riebling, Proto & Sachs LLP One North Broadway Suite 401 White Plains, New York 10604 5

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