People v Rodriguez

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People v Rodriguez 2019 NY Slip Op 33967(U) May 14, 2019 County Court, Westchester County Docket Number: 17-1173 Judge: David S. Zuckerman 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 -----------------~----------------x THE PEOPLE OF THE STATE OF NEW YORK -against- DECISION & ORDER JUAN RODRIGUEZ, KRISTOPHER JONES and DIVINE WILTSHIRE, Ind. No.: 17-1173 FILED Defendants. -----------------------------------x MAY 1 4 2019 ZUCKERMAN, J. Defendants Jua~ TIMOTHY C. IDONI ,.... COUNri CL ERK KJSJIS.t~~rt:'V\.if.<ffl.~~EST~~d Rodriguez and accused under Indictment· No. 17-1173 of one count of Burglary in the Second Degree. As set forth in the Indictment, it is alleged that, on qr about July 31, 2017, Defendants, in Westchester County, New York, while aiding and abetting and acting in concert with each other and others, did enter or remain unlawfully in a intent to commit a crime therein. dwelling with the By Notice of Motion dated April i and April 3, 2019, respectively, with acc.ompanying Affirmations, Defendants move for omnibus relief. submitted In response, the People have Affirmations in Opposition dated March 1, 2019. The motion is disposed of as follows: I. DEFENDANT RODRIGUEZ A. MOTION FOR DISCOVERY AND INSPECTION Defendant's motion for discovery is granted to the extent provided for in Criminal Procedure Law Article 240 and/or provided by the People. If any items set forth in CPL Article 240 have not been provided to Defendant pursuant to the consent discovery order [* 2] in the instant matter, said items are to be provided forthwith. Further, particulars the bill of set forth in the voluntary disclosure form provided to Defendant has adequately informed her of the substance of her alleged conduct and in all respects to disclose complies with CPL §200.95. The People acknowledge exculpatory material continuing (see Brady v Maryland, Giglio v Uni.ted States, 405 date. their duty 373 US 83 [1963) and us 150 [1971)) at the earliest possible If the People are or become aware of any material which is arguably exculpatory but they are not willing to consent to its disclosure, they are directed to disclose such material to the Court for its in camera inspection and determination as to whether ~uch will be disclosed to the defendant. To any further extent, including regarding the production of Rosario material at this time, the application is denied as seeking material or information beyond the scope of discovery (see People v Colavito, 87 NY2d 423 [1996); Matter of Catterson v Jones, 229 AD2d 435 [2nd Dept 1996); Matter of Catterson v Rohl, 202 AD2d 420 ) [2nd Dept 1994) ; Matter of Brown v Appelman, 241 AD2d 279 [2nd Dept 1998)). ~ MOTION TO INSPECT THE GRAND JURY MINUTES AND TO DISMISS AND/OR REDUCE THE INDICTMENT Defendant moves pursuant to CPL §§210. 20 (1) (b) and (c) to dismiss the indictment, or counts thereof, on the grounds that the evidence before the Grand Jury was legally insufficient and that [* 3] the Grand Jury proceeding was defective within the meaning of CPL §210.35. On consent of the People, the Court has reviewed the minutes of the proceedings before the Grand Jury. Pursuant to CPL §190.65(1), an indictment must be supported by legally sufficient evidence which establishes that. the defendant committed the offenses charged. Legally sufficient evidence is competent evidence which, if accepted as true, would establish each and every element of the offense charged and the defendant's commission thereof (CPL §70.10[1]); People v Jennings, 69 NY2d 103 [1986] ) . "In the context of a grand jury proceeding, legal sufficiency means prima facie proof of the crimes charged, proof beyond a ( reasonable doubt. not Bello, 92 NY2d 523 (1998); People v Ackies, 79 AD3d 1050 (2nd Dept 2010). In rendering a determination, 11 People v "[t] he reviewing court's inquiry is limited to whether the facts, if proven, and the inferences that logically flow from those facts supply proof of each element of the charged crimes and whether the grand jury could rationally have drawn the inference of guilt. 11 Bello, supra, quoting People v Boampong, 57 AD3d 794 (2nd Dept 2008-- internal quotations omitted). A review of the minutes reveals that the evidence presented, if accepted as true, would be legally sufficient to establish every element of the offenses charged (see CPL §210.30[2]). Accordingly, Defendant's motion to dismiss or reduce for lack of sufficient evidence is denied. With respect to Defendant's claim that the Grand Jury [* 4] ) proceeding was defective within the meaning of CPL §210. 35, a review of the minutes supports a finding that a quorum of the grand jurors was present during the presentation of evidence and at the time the district attorney instructed the Grand Jury on the law, that the grand jurors who voted to indict heard all the "essential and critical evidence" People v Julius, [2003]), (see People v Collier, 72 NY2d 298 300 AD2d 167 [1st Dept 2002], and that [1988] ; lv den 99 NY2d 655 the Grand Jury was properly instructed People v Calbud, 49 NY2d 389 [1980] and People v. Valles, (see 62 NY2d 36 [1984]) . In making this determination, the Court does not find that release of the Grand Jury minutes or certain portions thereof to the parties was necessary to assist the Court. MOTION FOR A HUNTLEY HEARING ~ Defendant moves to suppress noticed statements pursuant to CPL §.710.20(3). The People, in their Affirmation in Opposition, state that was there no impropriety attributable to Defendant. in the issue. statements in obtaining the statements They do, however, consent to a hearing Consequently, the motion to is granted to the extent that a suppress noticed Huntley hearing is ordered to determine the voluntariness of the noticed statements. ~ MOTION FOR A WADE HEARING Defendant moves to suppress a noticed identification procedure pursuant to CPL §710.20(3). Opposition, state that The People, there was no in their Affirmation in impropriety in the [* 5] identification procedure attributable to Defendant in the instant matter, and that it actually occurred when a police witness was testifying in the Grand Jury and was shown a still photograph taken from a video and a police photo, and asked if Defendant was the person portrayed in the two photos. suppress a Consequently, noticed identification procedure is the motion to granted to the extent that a Wade hearing is ordered to determine the propriety of the noticed identification procedure. ~ MOTION FOR SANDOVAL/VENTIMIGLIA/MOLINEUX HEARING 1. Sandoval - Granted, solely to the extent that a Sandoval hearing shall be held immediately.prior to trial at which time: A. The People must notify the Defendant of all specific instances of the Defendant's prior uncharged criminal, vicious or immoral conduct of which the People have knowledge and which the People intend to use at trial for purposes of impeaching the credibility of the Defendant (see, CPL §240.43); and B. Defendant must then sustain his burden of informing the Court of the prior misconduct which might unfairly affect him as a witness in his own behalf (see, People v. Malphurs, 111 A.D.2d 266 [2~ Dept. 1985]). 2. the event Ventimiglia/Molineux - Upon the consent of the People, in that \ the People determine that they will seek to introduce evidence at trial of any prior bad acts of the Defendant, including acts sought in their case in chief such as the prior crime used to elevate Count 1 of the Indictment to a Felony, they [* 6] shall so notify the Court and defense and counsel a Ventimiglia/Molineux hearing (see People v Ventimiglia, 52 NY2d 350 [1981] ;People v Molineux, 168 NY 264 [1901]) shall be held immediately prior to trial to determine whether or not any evidence of uncharged crimes may be used by the People, including to prove their case in chief. The People are urged to make an appropriate decision in this regard sufficiently in advance of trial to allow any Ventimiglia/Molineux hearing to be consolidated and held with the other hearings herein. I. DEFENDANT JONES ~ MOTION TO INSPECT THE GRAND JURY MINUTES AND TO DISMISS AND/OR REDUCE THE INDICTMENT Defendant moves pursuant to CPL §§210. 20 (1) (b) I and (c) to dismiss the .indictment, or counts thereof, on the grounds that the evidence before the Grand Jury was legally insufficient and that the Grand Jury proceeding was defective within the meaning of CPL §210.35. On consent of the People, the Court has reviewed the minutes of the proceedings before the Grand Jury. Pursuant to CPL §190.65(1), an indictment must be supported by legally sufficient evidence which establishes that the defendant Legally sufficient evidence is committed the offenses charged. competent evidence which, if accepted as true, would establish each and every,.. element of the offense charged and the defendant's commission thereof (CPL §70.10[1]); People v Jennings, 69 NY2d 103 [1986] ) . "In the context of a grand jury proceeding, legal [* 7] sufficiency means prima facie proof of the crimes charged, proof beyond a reasonable doubt." Bello, 92 NY2d 523 (1998); People v Ackies, 79 AD3d 1050 (2nd Dept 2010). In rendering a determination, People v not "[t] he reviewing court's inquiry is limited to whether the facts, if proven, and the inferences that logically flow from those facts supply proof of each element of the charged crimes and whether the grand jury could rationally have drawn the inference of guilt." Bello, supra, quoting People v Boampong, 57 AD3d 794 (2nd Dept 2008-- internal quotations omitted). A review of the minutes reveals that the evidence presented, if accepted as true, would be legally sufficient to establish every element of the offenses charged (see CPL §210.30[2]). Accordingly, Defendant's motion to dismiss or reduce for lack of sufficient evidence is denied. With respect to Defendant'~ claim that proceeding was defective within the meaning of the CPL Grand Jury §210. 35, a review of the minutes supports a finding that a quorum of the grand jurors was present during the presentation of evidence and at the time the district attorney instructed the Grand Jury on the law, that the grand jurors who voted to indict heard all the "essential and critical evidence" People v Julius, [2003]), (see People v Collier, 72 NY2d 298 300 AD2d 167 [1st Dept 2002], and that [1988] ; lv den 99 NY2d 655 the Grand Jury was properly instructed (see People v Calbud, 49 NY2d 389 [1980] and People v. Valles, 62 NY2d 36 [1984]). [* 8] In making this determination, the Court does not find that release df the Grand Jury minutes or certain portions thereof to the parties was necessary to assist the Court. ~ MOTION FOR A WADE HEARING Defendant moves to suppress a noticed identification procedure pursuant to CPL §710.20(3). Opposition, state that The People, there was in their Affirmation in no impropriety in the identification procedure attributable to Defendant in the instant matter, and that it actually occurred when a police witness was testifying in the Grand Jury and was shown a still photograph taken from a video and a police photo, and asked if Defendant was the person portrayed in the two photos. suppress a noticed Consequently, identification procedure is the motion to granted to the extent that a Wade hearing is ordered to determine the propriety of ) the noticed identification procedure. ~ MOTION FOR DISCOVERY AND INSPECTION Defendant's motion for discovery is granted to the extent provided for in Criminal Procedure Law Article 240 and/or provided by the People. If any items set forth in CPL Article 240 have not been provided to Defendant pursuant to the consent discovery order in the instant matter, said items are to be provided forthwith. Further, particulars the bill of set forth in the voluntary disclosure form provided to Defendant has adequately informed her of the substance of her complies with CPL §200.95. alleged conduct and in all respects [* 9] The People acknowledge exculpatory material continuing (see Brady v Maryland, Giglio v United States, 405 date. their us duty to 373 US 83 disclose [1963] and 150 [1971]) at the earliest possible If the People are or become aware of any material which is arguably exculpatory but they are not willing to consent to its disclosure, they are directed to disclose such material to the Court for its in camera inspection and determination as to whether such will be disclosed to the defendant. To any further extent, including regarding the production of Rosario material at this time, the application is denied as seeking material or information beyond the scope of discovery (see People v Colavito, 87 NY2d 423 [1996]; Matter of Catterson v Jones, 229 AD2d 435 [2nd Dept 1996]; Matter of Catterson v Rohl, 202 AD2d 420 [2nd Dept 1994] ; Matter of Brown v Appelman, 241 AD2d 279 [2nd Dept 1998]) . n: MOTION FOR SANDOVAL/VENTIMIGLIA/MOLINEUX HEARING 1. Sandoval - Granted, solely to the extent that a Sandoval hearing shall be held immediately prior to trial at which time: A. The People must notify the Defendant of all specific instances of the Defendant's prior uncharged criminal, vicious or immoral conduct of which the People have knowledge and which the People intend to use at trial for purposes of impeaching the credibility of the Defendant (see, CPL §240.43); and B. Defendant must then sustain his burden of informing the Court of the prior misconduct which might unfairly affect him [* 10] as a witness in his own behalf (see, People v. Malphurs, 111 A.D.2d 266 [2~ Dept. 1985]). 2. the Ventimiglia/Molineux - Upon the consent of the People, in event that the People determine that they will seek to introduce evidence at trial of any prior bad acts of the Defendant, including acts sought in their case in chief such as the prior crime used to elevate Count 1 of the Indictment to a Felony, they shall so notify the Court and defense counsel and a Ventimiglia/Molineux hearing (see People v Ventimiglia, 52 NY2d 350 [1981] ; People v Molineux, 168 NY 264 [1901] ) immediately prior to trial to determine whether or shall no~ be held any evidence of uncharged crimes may be used by the People, including to prove their case in chief. The People are urged to make an appropriate decision in this regard sufficiently in advance of trial to allow any Ventimiglia/Molineux hearing to be consolidated and held with the other hearings herein. All other motions are denied. Dated: White Plains, New York May 14, 2019 HON. DAVID S. ZUCKERMAN, A.J.S.C. / [* 11] . ' HON. ANTHONY A. SCARPINO, JR. District Attorney, Westchester County 111 Dr. Martin Luther King Jr. Blvd. White Plains, New York 10601 BY: Anne H. Stark, Esq. Assistant District Attorney RICHARD L. FERRANTE, ESQ. Attorney for Defendant Rodriguez 399 Knollwood Road, Suite 111 White Plains, NY 10603 ELI M. MOORE, ESQ. Attorney for Defendant po Box llH Scarsdale, NY 10583

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