People v Nemec

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People v Nemec 2018 NY Slip Op 33517(U) July 11, 2018 County Court, Westchester County Docket Number: 16-1036-01 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] -- . . . . ... . . COUNTY COURT: STATE OF NEW YORK COUNTY OF WESTCHESTER .. . . .. . . .. ,,,-- .:..:: .. ' ----------.---..,----------------------------------------------------X T~E FILED AND ENTERED .... ONLiJ_20l8 WESTCHESTER PEOPLE OF THE STATE OF NEW YORK -against- DECISION & ORDER Ind No.: 16-1036-01 JOHN NEMEC and BRIAN JAMES Defendants. ------------------------------------------------------------------X MINIHAN, A.. r FILED~ JUL 1 2 2u13 T!MOTHY C. !DONI COJh:rr Cl i::i':tK COUNTY or:: WI=.BIGH~SfER Defendant JOHN NEMEC, by Westchester County Ina1ctment No. 16- 03b-O , is charged, acting in concert with codefendant (Brian James), with Grand Larceny in the Second Degree (Penal Law§ 155.40[1]) and Conspiracy in the Fourth Degree (Penal Law§ 105.10[1]), · and is charged separately by the same indictment with Grand Larceny in the Third Degree (Penal Law§ 155.35[1]) (two counts) and Scheme to Defraud in the First Degree (Penal Law§ 190.65[1]). On March 30, 2017, codefendant (Brian James) pled guilty to Conspiracy in the Fifth Degree . . Defendant has filed an omnibus motion consisting of a Notice of Motion, an Affirmation in Support thereof, and a Memorandum of Law. In response thereto, 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 . dated May 15, 2018, entered in this case, this Court disposes of the motion as follows: A. MOTION to INSPECT and to DISMISS and/or REDUCE CPL ARTICLE 190 The 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. [* 2] .. - ,. '" with substantial evidence _the The defendant, who bears the burden of refuting presumption of regularity which attaches to official court proceedings (People v Pichardo, 168 AD2d 577 [2d Dept 1990]), has offered no sworn factual allegations, in support of his argument that the grandjury proceedings were defective. The minutes reveal a quorum of the grand jurors was present during the presentation of evidence, and that the Assistant District Attorney properly instructed the grand jury ori the law, and only permitted those grand jurors who heard all the evidence to vote the matter (see People v Ca/bud, 49 NY2d 389 [1980]; People v Valles, 62 NY2d 36 [1984]; People v Burch, 108 AD3d 679 [2d Dept 2013]). The evidence presented to the grand jury, if accepted as true, is legally sufficient to establish 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, 1NY3d269, 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 of a 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 c·ould 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]). 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 product.ion of the grand jury minutes, defendant's application for a copy of the grandjury minutes is denied (see People v Jang, 17 AD3d 693 [2d Dept 2005]; CPL 190.25[4][a]). B. MOTION to SUPPRESS NOTICED STATEMENTS The branch of defendant's motion seeking to suppress noticed statements on the grounds that they were unconstitutionally obtained is granted to the extent that a Huntley hearing shall be held prior to trial to determine whether any statements allegedly made by defendant, which have · been noticed by the People pursuant to CPL 710.30(1)(a), were involuntarily made by defendant within the meaning of CPL 60.45 (see CPL 710.20[3]; CPL 710.60[3][b]; People v Weaver, 49 NY2d 1012 [1980]), obtained in violation of defendant's Sixth Amendment right to counsel, and/or obtained in violation of the defendant's Fourth Amendment rights (see Dunaway v New York, 442 US 200 [1979]). 2 ' [* 3] . ., c. . " MOTION to PRECLUDE UNNOTICED STATEMENTS The branch of defendant's motion which is to preclude the People from introducing statements at trial that were not noticed is denied as premature. The People acknowledge the statutory requirements of CPL 710.30. D. 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 371[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 if he elects to testify at trial (CPL 240.43). · At the hearing, the defendant shall bear the burden of identifying any instances of his f 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 ilnduly 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]). To the extent defendant's application is for a hearing pursuant to People v Ventimiglia (52 NY2d 350 [1981]), it is denied since the People have not indicated ari 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. 3 [* 4] .) E. MOTION for LEAVEto FfLE FUTURE-MOTIONS This branch of defendant's motion is denied. Should defendant intend to bring further motions for omnibus relief, he must do so by order to show cause setting forth reasons as to why his motion was not and could not have been brought in conformity with CPL 255.20 (see CPL 255.20[3]). The foregoing constitutes the opinion, decision and order of this court. Dated: White Plains, New York July 11, 2018 Acting Supreme Court Justice To: HON. ANTHONY A. SCARPINO, Jr. Dis.trict Attorney, Westchester County 111 Dr. Martin Luther King, Jr., Boulevard White Plains, New York 10601 BY: Spencer C. Littman, Esq. Assistant District Attorney Kathleen Keating, Esq. Brendan O'Meara, Esq. Attorneys for John Nemec P.O. Box 376 Goldens Bridge, New York 10526 4

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