People v Brown
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People v Brown 2018 NY Slip Op 33934(U) August 10, 2018 County Court, Westchester County Docket Number: 18-0403-03 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 ----------·--------------------------------------------------------X WESTCHESTER THE PEOPLE OF THE STATE OF NEW YORK -againstDECISION & ORDER Indictment No.: 18-0403-03 JOHN BROWN~ MARK MAIR and CHARLES PRITCHETT, FILED -t \ Defendants. A~ j5 ------------------------------------------------------------------X MINIHAN, J. Tit. 1 . . . CO 1 3 2018 ~·?Tt1.Y C. IDONI 1CO,Jf, ,"'r:_c~~RK Defendant, CHARLES PRITCHETT, havmg been md1cted on olfi'ai%'1fi'May~$ti>Ci@~TER for, acting in concert with co-defendants (MARK MAIR and JOHN BROWN); the crime of Conspiracy in the Fourth Degree to commit Criminal Sale of a Controlled Substance in the Third Degree (Penal Law§ 105.10 [1]/220.39); and individually charged with Criminal Sale ofa Controlled Substance in the Third Degree (Penal Law§ 220.39)(2 counts) has filed an omnibus motion consisting of a Notice of Motion and an Affirmation in Support thereof. 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, this 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. 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 15Q [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. [* 2] ' Notably, the People have a 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]). 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 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, 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]). B. 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. Defendant's request to dismiss the indictment in the interest 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. Accordingly, the defendant's motion to dismiss in the interest of justice is denied. 2 [* 3] 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 grandjury was properly instructed (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, 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]). Additionally, 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 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 grandjury minutes is denied (People v Jang, 17 AD3d693 [2dDept2005]; CPL 190.25[4][a]). C. MOTION to SUPPRESS PHYSICAL EVIDENCE While the defendant moves to suppress evidence on the ground of illegal arrest, he offers no sworn allegations of fact in support of the conclusory statement of illegal seizure or arrest and thus, his motion is summarily denied (People v France, 12 NY3d 790 [2009]; People v Jones, 95 NY2d 721 [2001]; CPL 710.60[3][b]; see also People v Scully, 14 NY3d 861 [2010]). The 3 [* 4] People have represented that evidence was not seized upon his arrest. Defendant's motion to suppress the evidence seized pursuant to eavesdropping warrants and a minimization hearing is denied. It is well established that the probable cause standard necessary for the issuance of search warrants is the same standard applied to eavesdropping warrants (People v Kaiser, 21 NY2d 86 [1988]). Upon review of the four comers of the eavesdropping warrant affidavits, the warrants were adequately supported by probable cause (see People v Keves, 291AD2d571 [2d Dept 2002]; see generally People v Badilla, 130 AD3d 744 [2d Dept 2015]; People v Elysee, 49 AD3d 33 [2d Dept 2007]). The defendant fails to demonstrate that the warrants were based upon affidavits containing false statements made knowingly or intentionally, or with reckless disregard for the truth (People v McGeachy, 74 AD3d 989 [2d Dept 201 O]) and as such, no hearing is necessary on this motion (Franks v Delaware, 438 US 154, 171 [1978]). Similarly, since the defendant has failed to show a factual or evidentiary basis of police noncompliance as to the minimization of the intercepted calls, his request for a minimization hearing is denied (People v Berrios, 28 NY2d 361, 367 [1971]). 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 prior misconduct that lie 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]). 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 NY 264 [1901]). If the People move to introduce such evidence, the defendant may renew this aspect of his motion. 4 [* 5] • E. MOTION FOR a SEVERANCE & FOR a SEP ARATE TRIAL The defendant moves for a severance from his co-defendants and for a separate trial. Defendant presents no sworn allegations of fact or evidence to support the assertion that undue prejudice will result by joinder. Defendant does not contend that co-defendants would pursue an antagonistic defense (People v Chaplin, 181 AD2d 828 [2d Dept 1992]) and alleges that he should be tried separately since he is charged in only one of the two drug sales. The court may, for good cause shown, order that defendant be tried separately. Good cause includes a showing that defendant would be "unduly prejudiced by a joint trial" (CPL 200.40[ 1]). Where proof against all defendants is supplied by the same evidence, "only the most cogent reasons warrant a severance"(People v Bornholdt, 33 NY2d 75, 87 [1973]; People v Kevin Watts, 159 AD2d 740 [2d Dept 1990]) and," ... a strong public policy favorsjoinder, because it expedites the judicial process, reduces court congestion, and avoids the necessity of recalling witnesses ... " (People v Mahboubian, 74 NY2d 174, 183 [1989]). Here, defendant has failed to show good cause for severance and he was properly joined in the same indictment (CPL 200.40[1]). All charges in the incident, particularly the conspiracy, arise out of the same criminal transaction(s) and are related in time and location relying on the same evidence. To the extent, defendant's motion to sever is on the ground that there would potentially be prejudice arising from a Sandoval ruling is denied as premature, with leave to renew after a Sandoval ruling, and upon a showing that a joint trial will result in unfair prejudice to him and substantially impair his defense. Notably, a limiting instruction at trial would properly direct the jury to separately consider the proof as to each crime charged, thereby eliminating any prejudice to the defendant (see People v Veeny, 215 AD2d 605 [2d Dept 1995]). The foregoing constitutes the opinion, decision and order of Dated: White Plains, New York Augustto, 2018 Honorable Anne E. Minihan Acting Supreme 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: Valerie Livingsto11, Esq., Assistant District Attorney John R. Lewis, Esq. Attorney for Defendant Pritchett 36 Hemlock Drive Sleepy Hollow, NY 10591 5
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