People v Wheeler

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People v Wheeler 2018 NY Slip Op 33708(U) January 29, 2018 County Court, Westchester County Docket Number: Ind. No. 17-1027 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] , FfLED AND ENTERED COUNTY COURT: STATE OF NEW YORK COUNTY OF WESTCHESTER ON 1-3() -2018 ------------------------------------------------------------------)( WESTCHESTER THE PEOPLE OF THE STA TE OF NEW YORK -againstDECISION & ORDER Indictment No. 17-1027 GERALD WHEELER, Defendant. ------~-----------------------------------------------------------)( MINIHAN, J. Defendant, GERALD WHEELER, having been indicted on or about October 27, 2017 for Criminal Sale of a Controlled Substance in the Third Degree (Penal Law§ 220.39 [l]) (two counts); Criminal Possession of a Controlled Substance in the Third Degree (Penal Law § 220.16 [ 1]) (two counts); and Criminal Possession of a Controlled Substance in the Seventh Degree (Penal Law§ 220.03[1]) (two counts) 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&B. MOTION to INSPECT, DISMISS and/or REDUCE CPL ARTICLE 190 JAN 3 0 TIMOTHYC.100,'IJ COUNTY Cl.ERK COUNlY OF WESTC.HES The court grants the defendant's motion to the limited extent that the court has conduct the consent of the People, an in camera inspection of the stenographic transcription of the gran1 jury proceedings. Upon such review, the court finds no basis upon which to grant defendant's application to dismiss or reduce the indictment. 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 Cohen, 52 NY2d 584 [1981]; People v Iannone, 45 NY2d 589 [1978]). The defendant, who bears the burden of refuting with substantial evidence the 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 grand jury proceedings were defective. 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 ,r [* 2] law, and only permitted those grand jurors who heard all the evidence to vote the matter (see Pecple 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, 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, 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]). Defendant's request to dismiss the indictment in furtherance of justice is denied. The defendant has cited no persuasive 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 and 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. 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]). C. 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 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. 2 [* 3] 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 [l 972]). The People have also acknowledged their duty to comply with People v Rosario, ·(9 NY2d 286 [ l 961 ]). 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. As to the defendant's demand for scientific related discovery, the People have acknowledged their continuing duty to disclose any written report or document concerning a physical or mental examination or test that the People intend to introduce, or the person who created them, at trial pursuant to CPL 240.20 (l)(c). 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 her 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 200 l ]; Matter of Brown v Appelman, 241 AD2d 279 [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]). D. MOTION to SUPPRESS PHYSICAL EVIDENCE This branch of the defendant's motion is granted solely to the extent of conducting a Mapp hearing prior to trial to determine the propriety of any search resulting in the seizure of property (see Mapp v Ohio, 367 US 643(1961]). The hearing will also address whether any evidence was obtained in violation of the defendant's Fourth Amendment rights (see Dunaway v New York, 442 US 200 [l 979]). E.&F. MOTION TO SUPPRESS IDENTIFICATION TESTIMONY CPL 710 This motion is granted to the limited extent of conducting a hearing 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 noticed identifications 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. 3 [* 4] G. MOTION to STRIKE STA TEMENT NOTICES This motion is denied. The initial notices and the amended notice were filed timely are in conformity with the statutory requirements of CPL 710.30. H. MOTION for PRODUCTION of INFORMANTS The defendant moves for disclosure of the identity of informants and uncover officers without demonstrating what relevant testimony any such witness would have on the issue of his innocence or guilt (People v Goggins, 34 NY2d 163 [1974]; People v Pena, 37 NY2d 642 [1975]). As such, defendant's motion is denied. 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 [1972]; Brady v Maryland, 373 US 83 [1963]; People v Wooley, 200 AD2d 644 [2d Dept 1994]). I. 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 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 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, 111 AD2d 266 [2d Dept 1985]). To the extent defendant's application is for a hearing pursuant to People v Ventimiglia (52 NY2d 3 50 [ 1981 ]), it is denied since the People have 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. 4 [* 5] . J. MOTION for a SEVERANCE of COUNTS Defendant moves to sever some counts ( 1, 3 and 5) from other counts (2, 4 and 6), creating, in effect, two separate indictments. The Court finds that the counts were properly joined pursuant to CPL 200.20(2)(c) which authorizes joinder of charges that are based upon different criminal transactions when those charges are defined by the same or similar statutory provisions and consequently are the same or similar in law. Moreover 11 • • • a strong public policy favors joinder, because it expedites the judicial process, reduces court congestion, and avoids the necessity of recalling witnesses .... 11 ( People v Mahboubian, 74 NY2d 174, 183 [1989]). Defendant has failed to make the requisite showing that the counts must be severed from one another on the basis that he wishes to testify with respect to one incident but would refrain from testifying as to the other incident (People v Lane, 133 AD2d 4 70, 4 71 [2d Dept 1987]). The Court finds that the charges are properly joined and the defendant has not demonstrated that he would be unfairly prejudiced by a trial on all the joined charges. A limiting instruction at trial would direct the jury to separately consider the proof as to each crime thereby eliminating prejudice to the defendant. The defendant's motion is, therefore, denied. The foregoing constitutes the opinion, decision and order of this court. Dated: White Plains, New York January ~ , 2018 To: HON. ANTHONY A. SCARPINO, JR. District Attorney, Westchester County 111 Dr. Martin Luther King, Jr. Boulevard White Plains, New York I 060 I BY: Kevin Jones, Esq. Assistant District Attorney CLARE J. DEGNAN, ESQ. The Legal Aid Society of Westchester County 150 Grand Street, Suite I 00 White Plains, New York I 060 I BY: Christine L. Asch, Esq. 5

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