People v Olmos

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People v Olmos 2019 NY Slip Op 34274(U) February 11, 2019 County Court, Westchester County Docket Number: Indictment No. 18-0861 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] FILED COUNTY COURT: STATE OF NEW YORK COUNTY OF WESTCHESTER FEB 1 1 2019 TIMOTHY C. IDONI COUNTY CLERK COUNTY OF WESTCHESTER ----------------------------------x THE PEOPLE OF THE STATE OF NEW YORK DECISION -against- ORDER & Ind. No.: 18-0861 JOSE OLMOS, Defendant. -----------------------------------x ZUCKERMAN, J. Defendant Murder in the stands accused under First Degree Indictment No. 18-08 61 (Penal Law §125.27[1]a[vi]) of and two counts of Murder in the Second Degree (one count each of Penal Law §125.25-[l] Indictment, Defendant, and it Penal is Law alleged §125.25[3]). that, on or As set about forth July 27, in the 2018, in Westchester County, New York, with intent to cause the death of another, caused the death of that other in the course or commission of a robbery. By Notice of Motion dated January 15, 2019, with accompanying Affirmation, relief. Defendant moves for omnibus In response, the People have submitted an Affirmation in Opposition dated January 30, 2019. The motion is disposed of as follows: & 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. [* 2] Further, the bill of particulars 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 their continuing (see Brady v Maryland, duty 373 US 83 [1963] and Giglio v United States, 405 US 150 [1971]) at the earliest possible If the People are or become aware of any material which is date. 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 [2 nd Dept 1996]; Matter of Catterson v Rohl, 202 AD2d 420 [2 nd Dept 1994]; Matter of Brown v Appelman, 241 AD2d 279 [2 nd Dept 1998]). ~ 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 in obtaining the statements attributable to Defendant and consent to a hearing in the issue. Consequently, the motion to suppress noticed statements is granted [* 3] to the extent that a Huntley hearing is ordered to determine the voluntariness of the noticed statements . MOTION FOR A WADE HEARING .Q..._ Defendant moves to suppress noticed identification procedures The People, pursuant to CPL §710.20(3) Opposition, state that there was no in their Affirmation in impropriety in the identification procedures attributable to Defendant in the instant matter and consent to a hearing on the matter. Consequently, the motion to suppress noticed identification procedures is granted to the extent that a Wade hearing is ordered to determine the propriety of the noticed identification procedures. Q__._ MOTION FOR A MAPP/DUNAWAY HEARING Defendant moves to suppress ~11 physical evidence which the People seek to introduce against him at trial alleging that it was ~ r~cove~ed after a search that was not based on probable cause. '- The· People, in their Affirmation in Opposition, state that there was no impropriety in the search conducted and seizure made and add, particular, that it was based on probable cause. in Consequently, the motion to suppress physical evidence is granted to the extent that a pre-trial Mapp/Dunaway hearing is ordered to determine the propriety of the search and seizure. ~ 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 [* 4] 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 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 [ 198 6] ) . "In the context of a grand jury proceeding, legal sufficiency means prima f acie proof of the crimes charged, proof beyond a reasonable doubt." People v Bello, (1998); People v Ackies, 79 AD3d 1050 (2 nd Dept 2010). a determination, 92 not NY2d 523 In rendering "[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 (2 nd 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]). Defendant's motion to dismiss or reduce for evidence is denied. Accordingly, lack of sufficient [* 5] With respect proceeding was to Defendant's defective within claim that the Grand Jury 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" (see People v Collier, People v Julius, [2003]), 300 AD2d 167 [1 st Dept 2002], and that People v Calbud, the Grand Jury was 72 NY2d 298 [1988]; lv den 99 NY2d 655 properly instructed 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. E..e.. 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 [* 6] 266 [2 nd 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 [198l];Peop1e 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. All other motions are denied. Dated: White Plains, New York February 11, 2019 HON. DAVIDS. ZUCKERMAN, J.C.C. HON. ANTHONY A. SCARPINO, JR. District Attorney, Westchester County 111 Dr. Martin Luther King Jr. Blvd. White Plains, New York 10601 BY: Valerie A. Livingston, Esq. Assistant District Attorney [* 7] ADA D. MEDINA, ESQ. Attorney for Defendant 150 Grand Street, Suite 100 White Plains, NY 10601

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