People v Giusti

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People v Giusti 2018 NY Slip Op 33701(U) September 10, 2018 County Court, Westchester County Docket Number: Ind. No. 17-0979 Judge: George E. Fufidio 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 ------------------------------------------------------------------)( THE PEOPLE OF THE STATE OF NEW YORK "' FILE l;\CISION & ORDER -against- SEP 1O ~ndictment No.: 201 EDWARD GIUSTI, 17-0979 T1:·,"'Yf"HY C. IDONI Defendant. COUNfi~;·~~J~~~~~STER ------------------------------------------------------------------)( FUFIDIO, J. The Defendant, EDWARD GIUSTI, having been indicted on or about May 31, 2018 with one count of criminal possession of a weapon in the second degree (Penal Law§ 265.03 (3)) and one count of criminal possession of stolen property in the fourth degree (Penal Law§ 165.45 (4)) has filed an omnibus motion which consists of a Notice of Motion, an Affirmation in Support 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 entered in this case, t~is Court disposes of this motion as follows: A. 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. The Defendant's motion for discovery is granted to the extent provided for in Criminal Procedure Law Articles 240. If there any further items discoverable pursuant to Criminal Procedure Law Article 240 which have not been provided to the 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. 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, 241 AD2d 279 [2d Dept 1998]; Matter of Catterson v Jones, 229 AD2d 4 35 [2d Dept 1996]; Matter of Catterson v Rohl, 202 AD2d 420 [2d Dept 1994]). [* 2] ;· B. MOTION FOR SANDOVAL AND VENTIMIGLIA HEARINGS The 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 act, and vicious or i!11ffioral conduct (see, People v Sandoval, 34 NY2d 371 [1974]). The People have consented to, and it is now ordered that immediately prior to trial the court will conduct a Sandoval hearing. At the hearing, the People are required to notify the Defendant of all specific instances of his criminal, prior uncharged criminal acts and 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). The Defendant shall then 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 him should he decide testify as a witness on his own behalf and thereby prevent him from exercising this right (see, People v Matthews, 68 NY2d 118 [1986]; People v Malphurs, 111AD2d266 [2d Dept 1985]). The Defendant's application for a Ventimiglia hearing is denied as premature, because the Peopie · have not indicated an intention to use any evidence of prior bad act or uncharged crimes of the Defendant in its case in chief (see, People v Molineaux, 168 NY2d 264 [1901]; People v Ventimiglia, 52 NY2d 350 [1981]). The People have stated that if they do intend to use any Molineaux evidence that they will inform the defense and the court of their intenti~n and at that point the Defendant may renew this aspect of his motion. C. MOTION to STRIKE PREJUDICIAL LANGUAGE The defendant moves to strike certain language from the indictment on the grounds that it is surplusage, irrelevant or prejudicial. The language concluding the indictment merely identifies the defendant's acts as public, rather than private wrongs and such language should not be stricken as prejudicial. This motion is denied (see, People v Gill, 164 AD2d 867 [2d Dept 1990]; People v Winters, 194 AD2d 703 [2d Dept 1993]; People v Garcia, 170 Misc. 2d 543 [Westchester Co. Ct. 1996]). · D. MOTION TO INSPECT. 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. 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]). With respect to Count 1_of the indictment, the evidence presented, if accepted as true, is legally 2. [* 3] 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, 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 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 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]). With respect to Count 2 of the indictment, alleging criminal possession of stolen property in the fourth degree, the Court finds that there is insufficient evidence to sustain the charge in the indictment. The only evidence before the grand jury that the gun in question was stolen property is the inadmissible hearsay statement of Detective Ritell who testified that he had run a computer check of the gun's serial number and learned that the gun had been reported stolen in a burglary in Newtown, Connecticut. When that evidence is excluded from the grand jury presentation, there is no other evidence supporting the allegation that the gun was stolen (CPL 190.65(1), People v Moffitt, 20 AD3d 687 [3rd Dept. 2005] (Submitting inadmissible hearsay to a grand jury is fatal when the remaining evidence is insufficient to sustain an indictment)). However, the Court does not find that the submission of this hearsay testimony impaired the integrity of the rest of the proceeding and does not affect Count 1. Furthermore, the People are given permission to re-submit the charge to the grand jury should they so apply. Finally, the minutes reveal 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 grandjury 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]). E. MOTION TO SUPPRESS NOTICED STATEMENTS This branch of the Defendant's motion seeking to suppress 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 the Defendant, which have been noticed by the People pursuant to CPL 710.30 (l)(a) were involuntarily made by the 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]). F. MOTION TO SUPPRESS PHYSICAL EVIDENCE This branch of the defendant's motion is granted solely to the extent that Mapp and Dunaway hearings are directed to be held prior to trial to determine the propriety of any search resulting in the seizure of property (see, Mapp v Ohio, 367 US 643 [1961]) and whether any evidence was obtained in violation of 3 [* 4] the defendant's Fourth Amendment rights (see, Dunaway v New York, 442 US 200 [1979]). H. MOTION FOR HEARINGS TWENTY DA Ys IN ADVANCE OF TRIAL The defendant has not shown why the Court should order hearings at least twenty days in advance and accordingly his motion is denied. The foregoing constitutes the opinion, decision and order of this Court. Dated: TO: White Plains; New York September / 4 , 2018 HON. ANTHONY A. SCARPINO, JR. District Attorney, Westchester County 111 Dr. Martin Luther King, Jr. Boulevard White Plains, New York 10601 By: Elizabeth Gordon, Esq. Assistant District Attorney Steven A. Bender, Es.q. Assistant District Attorney ALEXANDER AYOUB, ESQ. Attorney for the Defendant · 50 Main Street, Suite 1000 White Plains, New.York 10606 4

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