People v Sheridan

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People v Sheridan 2019 NY Slip Op 34391(U) May 13, 2019 County Court, Westchester County Docket Number: Indictment No. 18-1332 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 MAY 1 4 2e19 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X THE PEOPLE OF THE STATE OF NEW TIMOTHY C. IDONI COUNTY CLERK YORK.COUNTY OF WESTCHESTER -against- DECISION MIRABAI SHERIDAN and PHILIP BUDIN; & ORDER Ind. No.: 18-1332 Defendants. -----------------------------------x ZUCKERMAN, J. Defendants stand accused under Indictment No. 18-1332 of one count each of Robbery in the First Degree (Penal Law §160.15[4]), Burglary in the First Degree Robbery in the Second (Penal Law §140. 30 [4]), Attempted Degree (Penal Law §110/160.10[2b]), Conspiracy in the Fourth Degree (Penal Law §105.10), and Criminal Possession of a Firearm (Penal Law §265.01-b). Defendant Budin also stands accused under the same Indictment of one count of Tampering With Physical Evidence (Penal Law §215. 40 [2]), while Defendant Mirabai Sheridan stands charged with one count each of Attempted Tampering with Physical Evidence (Penal Law §110/215.40[2]) and Endangering the Welfare of a Child (Penal Law §260.10[1]). As set forth in the Indictment, it is alleged that, on or about October 24, 2018, Defendants, in Westchester County, New York, while aiding and abetting and acting in concert with each other, did forcibly steal property, and did enter or remain unlawfully in a dwelling with the intent to commit a crime therein, and in the course or commission thereof, or immediate flight therefrom, displayed what appeared to be a pistol. [* 2] It is further alleged that, on or about November 14, 2018, Defendants, in Westchester County, New York, while aiding and abetting and acting in concert with each other, did attempt to forcibly steal property, and in the course or commission thereof, or immediate flight therefrom, displayed what appeared to be a pistol. In addition, it is alleged that, on or about and between October 12, 2018 and November 14, 2018, Defendants, in Westchester County, New York, did, with intent that conduct constituting a class B or class C felony be performed, namely Robbery in the First or Second Degree, agreed with one or more persons to engage in or cause the performance of such conduct. It is further alleged that, on or about November 14, 2018, Defendants, in Westchester County, New York, while aiding and abetting and acting in concert with each other, did possess a firearm. In addition, it is alleged that, on or about and between October 23, 2018 and November 14, 2018, Defendant Philip Budin, in Westchester County, New York, believing that certain physical evidence was about to be produced or used in an official proceeding, and intending to prevent such production or use, did suppress it by an act of concealment, destruction, or by employing force, against another. alteration or intimidation or deception It is also alleged that, on or about November 15, 2018, Defendant Mirabai Sheridan, in Westchester County, New York, believing that certain physical evidence was about to be produced or used in an official proceeding, and intending to prevent such production or use-, did attempt to suppress it by an act of [* 3] concealment, alteration or destruction, or by employing force, intimidation or deception against another. while aiding and abetting and acting in concert with each other, firearm. Finally, did possess a it is alleged that, on or about October 24, 2018, Defendant Mirabai Sheridan, in Westchester County, New York, knowingly acted in a manner likely to be injurious to the physical, mental, or moral welfare of a child less than seventeen years of age. By Notices of Motion dated March 18, 2019, with accompanying Affirmations, Defendants move for omnibus relief. In response, the People have submitted Affirmations in Opposition dated April 1, 2019. On April 23, 2019, the court corresponded with the People and counsel for Defendant Budin, advising the People that the court had concerns regarding the sufficiency of the proof as to defendant Budin, including whether he aided, abetted, and acted in concert with defendant Sheridan. Dept 2015). See People v Coleman, 131 AD3d 705 (2 nd The People responded on April 30, 2019; counsel for Defendant Budin did not reply. The motions are disposed of as follows: I. DEFENDANT SHERIDAN A. 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 [* 4] 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 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)) shall be held immediately prior to trial to determine whether or not any evidence of uncharged crimes may be us·ed 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. ~ MOTION FOR A WADE/DUNAWAY HEARING Defendant moves to suppress a noticed identification procedure pursuant to CPL §·710. 20 (3), including that it was the product of an arrest which was not based on probable cause. The People, in their [* 5] Affirmation in Opposition, state that there was no impropriety in the identification procedure attributable to Defendant in the instant matter, and that it was the product of an arrest that was based on probable cause. Consequently, the motion to suppress a noticed identification procedure is granted to the extent that a Wade/Dunaway hearing is ordered to determine the propriety of the noticed identification procedure. ~ 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 © 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 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, not proof beyond a reasonable doubt." People v Bello, 92 NY2d 523 (1998); People v Ackies, 79 AD3d 1050 (2 nd Dept 2010). In rendering [* 6] a determination, " [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]). 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 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" (see People v Collier, 72 NY2d 298 [1988]; People v Julius, 300 AD2d 167 [1 st Dept 2002], lv den 99 NY2d 655 [2.003]), and that the Grand Jury was properly instructed (see People v Calbud, 49 NY2d 389 [1980] and People v. Valles, 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. [* 7] II. DEFENDANT BUDIN A. 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 © 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 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, not proof beyond a reasonable doubt." People v Bello, 92 NY2d 523 (1998); People v Ackies, 79 AD3d 1050 (2 nd Dept 2010). In rendering a determination, "[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). [* 8] 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]), including with regard to Defendant aiding and abetting and acting in concert with Defendant Sheridan. With respect to Defendant's claim that the Grand Jury 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" (see People v Collier, 72 NY2d 298 [1988]; People v Julius, 300 AD2d 167 [1 st Dept 2002], lv den 99 NY2d 655 [2003]), and that the Grand Jury was properly instructed (see People v Calbud, 49 NY2d 389 [1980] and People v. Valles, 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/DUNAWAY HEARING Defendant moves to suppress noticed statements pursuant to CPL §710.20(3) alleging that they were made after a seizure that was not based on probable cause. The People, in their Affirmation in Opposition, state that there was no impropriety in obtaining the statements attributable to Defendant and, in particular, add that his seizure was based on probable cause. They do, however, consent [* 9] to a hearing in the issue. Consequently, the motion to suppress noticed statements is granted to the extent that a Huntley/Dunaway hearing is ordered to determine the voluntariness of the noticed statements. ~ MOTION FOR A MAPP/DUNAWAY HEARING/TO CONTROVERT THE SEARCH WARRANT Defendant moves to suppress all physical evidence which the People seek to introduce against him at trial, alleging that it was recovered 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, in particular, that it was based on probable cause. 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. While not also denominated in Defendant's moving papers as a motion to controvert the search warrant herein, with respect to physical evidence recovered pursuant to execution of search warrants in this matter, the court has also reviewed the affidavits in support of the search warrants and finds they provided the issuing magistrate with ample probable cause to support issuance of the warrant. Further, this court reviewed the search order and finds them to be proper in all respects. according to the Voluntary Disclosure This court notes that Form and People's Affirmations filed in this case, the People have provided defense counsel with access to the search warrant and supporting affidavit. [* 10] ~ MOTION FOR A WADE HEARING Defendant moves to suppress a noticed identification procedure pursuant to CPL §710.20(3). .state Opposition, that The People, in their Affirmation in there was no impropriety in the identification procedure attributable to Defendant in the instant matter. Consequently, identification procedure hearing is the motion to suppress a noticed is granted to the extent that a ordered to determine the propriety of the Wade noticed identification procedure. ~ MOTION TO SEVER Defendant moves to sever the trial of the instant Indictment from that of his co-defendant, asserting that his defense is in conflict with that of the co-defendant, that a joint trial would result in undue prejudice to him, and that, if the co-defendant's post arrest statement is admitted at trial, it would violate his constitutional rights to a fair.trial and his right to crossexamine witnesses against him. The defendant and the co-defendant are, properly j oinable because they are part of transaction--a single burglary involving all the People argue, the same criminal three defendants. Defendant has pointedly failed to rebut this, by demonstrating that the counts transaction. against The each are not part People also assert of that, the as same a criminal single count against all three defendants, the proof as to each is essentially the same as that against the others . Consequently, Defendant [* 11] having failed to demonstrate that the counts were not properly j oinable, the court has no choice but to decline to sever the trial of this defendant from the trial of the co-defendant. Defendant also asserts that a joint trial would result in undue prejudice to him, including that their defenses are antagonistic, and that if the co-defendant's statement were to be admitted at trial, his right to a fair trial would be violated, and his right to cross-examine witnesses impaired. As the People properly note, Defendant has failed to specify how his right to a fair trial would be violated by joinder with another defendant whose trial strategy might differ from his, nor has concrete proof (as opposed to assertion and speculation) of such trial strategy differences been offered by this defendant. As to the Bruton issue (Bruton v US, 391 US 123 [1968]), the motion'is premature since the court has not ruled on the admissibility at trial of any statements made by the co-defendant, and in any event the statements as recorded in the Voluntary Disclosure do not appear to be inculpatory as to this Defendant. Consequently, the motion to sever is denied in all respects. ~ 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 [* 12] 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 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]) 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 May 13, 2019 '\ HON. A.J.S.C~ [* 13] 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 STEPHENS. HANSEN, ESQ. Attorney for Defendant Sheridan PO Box 566 New Rochelle, NY 10801 FREDERICK J. Attorney for 45 Broadway, New York, NY SOSINSKY, ESQ. Defendant Budin Suite 3010 10006

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