People v Tykeem Mcgee

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People v Tykeem Mcgee 2018 NY Slip Op 33765(U) March 8, 2018 County Court, Westchester County Docket Number: Ind. No. 17-1145 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 ANDENTERED COUNTY COURT: STATE OF NEW YORK COUNTY OF WESTCHESTER WESTCHESTER ------------------------------------------------------------------)( THE PEOPLE OF THE STATE OF NEW YORK -against- DECISION & ORDER Indictment No. 17-1145 TYKEEM MCGEE, Defenti1aAfF' lY C. IDONI Cr..!Uf'! lY Cl ERK ----------------------------------------------eet:J-i'i'"r'y'-urvvt:&.rcHESTER MINIHAN, J. · Defendant, TYKEEM MCGEE, having been indicted on or about December 8, 2017 for Criminal Sale of a Controlled Substance in the Third Degree (Penal Law§ 220.39 [1]) (2 counts) and Criminal Possession of a Controlled Substance in the Third Degree (Penal Law § 220.16 [ 1]) (2 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.-D. 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. 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. 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 physic~! 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). [* 2] · 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 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]). E. MOTION to STRIKE IDENTIFICATION NOTICE and PRECLUDE IDENTIFICATION TESTIMONY CPL 710 The motion to strike is denied. Said notice is in conformity with the statutory requirements of CPL 710.30. The motion to preclude identification testimony 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. F. 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 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]). 2 [* 3] · The defendant, who bears the burden ofrefuting 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 law, and only permitted those grand jurors who heard all the evidence to vote the matter (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 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. The court has reviewed the submissions of counsel in support of his claim of low cognitive functioning however 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]). 3 [* 4] . G.· • MOTION for DISCLOSURE of DEALS and AGREEMENTS 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]; Bradyv Maryland, 373 US 83 [1963]; People v Wooley, 200 AD2d 644 [2d Dept 1994]). H. MOTION for DISCLOSURE of INFORMANTS Defendant's motion for a Darden/Goggins hearing is denied since he has failed to demonstrate what relevant testimony any such witness would have on the issue of his innocence or guilt (see People v Goggins, 34 NY2d 163 [1974]; People v Rivera, 98 AD3d 529 [2d Dept 2012]). 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 371 [ 197 4]). 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 er.edibility. 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]). 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 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. J. MOTION to STRIKE ALIBI NOTICE Defendant's motion to strike the alibi notice is denied. Contrary to the defendant's contentions, it is well-settled that CPL 250.00 is indeed in compliance with the constitutional requirements (see People v Dawson, 185 AD2d 854 [2d Dept 1992]; People v Cruz, 176 AD2d 751 [2d Dept 1991]; 4 [* 5] People v Gill, 164 AD2d 867 [2d Dept 1990]) and provides equality in the required disclosure (People v ' Petetson, 96 AD2d 871 [2d Dept 1983]; see generallyWardius v Oregon, 412 US 470 [1973]). The foregoing constitutes the opinion, decision and order of this court. Dated: White Plains, New York March (J , 2018 Acting Justice of the Supreme Court To: HON. ANTHONY A. SCARPINO, JR. District Attorney, Westchester County 111 Dr. Martin Luther King, Jr. Boulevard White Plains, New York 10601 BY: Sharleen Bailon, Esq. Assistant District Attorney CLARE J. DEGNAN, ESQ. The Legal Aid Society of Westchester County 150 Grand Street, Suite 100 White Plains, New York 10601 By: April McKenzie, Esq. 5

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