People v Antico
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People v Antico 2018 NY Slip Op 33941(U) September 24, 2018 Supreme Court, Westchester County Docket Number: 18-0503 Judge: Susan M. Capeci 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 . ON SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER q ~df2o18 WESTCHESTER COUNTY CLERK -------------------------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK DECISION & ORDER - against - Fl L~tment No: 18-0503 CU ~ r. ALEXANDER ANTIGO, Defendant. · __________________________________ "'.___________________________ ,PEP 2 7 2018 'ftMOTHY C. IDONI COUNTYCLERK CAPECI, J., .COUNlY orWEsTCHESTER. . . The defendant, having been charged by indictment with assault in the second degree (P.L. 120.05 (2)) and criminal possession of a weapon in the fourth degree (P.L. 265.01' (2)), now makes this motion seeking omnibus relief. , The defendant has submitted an affirmation from his attorney and memorandum of law in support of his omnibus motion, in which he seeks the following relief: 1) inspection of the grand jury minutes by the Court and the defendant, and thereafter, for the dismissal of the indictment and/or reduction of the charges contained there.in; 2) dismissal of the indictment in the interest of justice; 3) suppression of physical evidence recovered in this case, as a result of his unlawful arrest without probable cause, or a Dunaway/Mapp hearing; 4) a SandovalNentimiglia hearing; 5) motion for a further bill o.f particu'lars; 6) disclosure of materials not previously provided through consent . . discovery, and Brady material; and 7) leave to make further pre-trial motions as necessary. The People have submitted an affirmation in opposition in.which they consent to provide discovery limited to the parameters of CPL article 240, as well as Brady [* 2] material. They also consent to a Sandoval hearing, and to an in camera inspection of the grand jury minutes by the Court to assess legal sufficiency, but otherwise. oppose the motion. The Court now finds as follows. 1. MOTION TO INSPECT/DISMISS/REDUCE ._; This application is granted to the extent that the Court has conducted an in camera inspection of the minutes of the Grand Jury proceedings. Upon review of the evidence presented, this Court finds that all counts of the indictment were supp~rted by sufficient evidence and that the instructions given were appropriate. There was no infirmity which would warrant a dismissal of the instant indictment. Accordingly, that ./ branch of the motion which seeks dismissal of the indictment is denied. The Court further finds no facts which would warrant rel~asing any portion of the minutes o~ the grand jury proceedings to the defense (CPL 210.30 (3)). 2. MOTION TO DISMISS IN THE INTEREST OF JUSTICE The defendant moves for dismissal of the charges in the interest of justice, arguing that he has no criminal history and that this incident occurred as a result of his t: . • • suffering a bipolar episode due to being off his medication. He asserts that he has now been in treatment for his mental illness consistently. The defendant's motion to dismiss the· charges in the interest of justice is denied. A criminal charge may be dismissed in furtherance of justice 'pursuant to CPL 170.40 where there exists "some compelling factor or circumstance clearly derr)onstrating that conviction or prosecution of the defendant would constitute or result in an injustice" (People ·v Clayton, 41 AD2d 204 (2d Dept 1973)). Such relief is to be exercised -2- [* 3] sparingly, "in the unusual case that cries out for fundamental justice beyond the confines of conventional considerations" (People v·Belge, 41 NY2d 60 (1976)). After consid~ration of all the factors contained in CPL 170.40, the court finds that dismissal in the interest of justice is not warranted under the circumstances of this case. The defendant is charged with having entered the home of a stranger, grabbed a knife and stabbed his brother. As aptly noted by the People, he may be a danger to the ·community, and any sentence imposed, if he is convicted, may include treatment. The defendant's motion is thus denied. 3. MOTION TO SUPPRESS PHYSICAL EVIDENCE/ PROBABLE CAUSE . HEARING The defendant contends that all evidence recovered in this case, including items recovered at the scene as well as clothing he was wearing, should be suppressed because they were obtained as a result of his arrest without probable cause. He further · argues he should not have been arrested since he was suffering from a psychiatric condition and could not form the intent to commit the crimes charged. The defendant's motion for suppression of physical evidence or for a Dunaway/Mapp hearing is denied as he has not asserted any specific factual allegations, sworn or otherwise, in support of his claim of illegal arrest (People v Mendoza, 82 NY2d 415 (1993)). Whether he seeks to assert a psychiatric defen·se in this case would have no bearing on the existence of probable cause for his arrest. lri any event, the defendant's arrest was based upon information provide.d to police officers by identified citizens, which ·was presumed reliable (People v Boykin, 187' AD2d 661 (2d Dept 1992); People v Newton, 180 AD2d 764 (2d Dept 1992)). Further, .. -3- [* 4] evidence of the pants he was wearing was seized pursuant to a validly issued s·earch warrant, which he was advised of as part of consent discovery, and which he has not specifically contested. With respect to evidence recovered from the apartment where.the incident . occurred, as that apartment was the residence of a neighbor, the defendant does not have standing to contest the recovery of physical evidence recovered from the apartment ·(People v Hornedo, 303 AD2d 602 (2d Dept 2003), as he had rio legitimate expectation of privacy in this location. Since the defendant did not possess a legitimate expectation of privacy in the place. these items were recovered, he does not have standing to contest the seizure of these items (People v Ramirez-Portoreal, 88 NY2d 99 ,· (1996); People v Oliver, 39 AD3d 880 (2d Dept 2007)). The defendant's motion to suppress physical ev_idence is the.refore denied. 4. MOTION FOR A SANDOVALNENTIMIGLIA HEARING The defendant's motion for a Ventimiglia hearing is denied at this time since the People do not represent that they are seeking to introduce any of defendant's prior bad acts on their direct case. The defendant's motion may be renewed in the event the People later seek to offer such evidence at trial. The motion for a Sandoval hearing is granted and shall be renewed before the trial Judge. 5. MOTION FOR A SUPPLEMENTAL BILL OF PARTICULARS Although the People have already supplied the defendant with a bill of particulars in this case, he seeks a more specific bill of particulars. He argues that the bill of . I particulars provided to him is insufficient. The function of a bill of particulars is to define more specifically the crime -4- [* 5] -5- [* 6] • ongoing investigation (Brown v Grosso, 285 AD.2d 642 (2d Dept 2001 ); see also Pirro v Lacava, 230 AD2d 909 (2d Dept 1996)). Th_e People have acknowledged their continuing obligation to provide exculpatory information to the defendant (Brady v Maryland, 373 US 83), and are directed to disclose any such information to the defense. 7. MOTION FOR A RESERVATION OF RIGHTS TO MAKE FURTHER MOTIONS The defendant seeks to reserve the right to make further motio!'ls as necessary. This motion is denied. CPL 255.20 is controlling with respect to the time frame ·for making pre-trial motions and there have been no allegations of good cause for making further motions outside of those time constraints. This decision constitutes the Order of the Court. Dated: White Plains, New York September 24, 2018 HON. S SAN M. CAPECI A.J.S.C.· . To: Hon. Anthony A. Scarpino, Jr. District Attorney, Westchester County 111 Dr. ·Martin Luther King Jr. Blvd. White Plains, New York 10601 Attn: Kevin Jones, Esq. Assistant District Attorney The Quinn Law Firm Attorneys for Defendant 399 Knollwood Road, Suite 220 White Plains, New York 10603 -6-
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