People v Ford
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People v Ford 2019 NY Slip Op 34396(U) December 17, 2019 County Court, Westchester County Docket Number: Ind. No. 19-0958 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] l ... FILED I • • I.,• COUNTY COURT: STATE OF ~EW YORK COUNTY OF WESTCHESTER FEB 2 3 202\· --------. -------------------------X THE PEOPLE OF THE STATE OF NEW YORK 1"i'~{OTHV ~ 100~1, (,, )Ui, rY ·;-;~R~ ·; R "•'"'" "11 ,t nF WE.ti, cnE.STE (.,,.1i.1, · ' ~. -against- DECISION & ORDER ANTHONY FORD, Ind. No.: 19-0958 Defendant. -----------------------------------x ZUCKERMAN·, J: Defendant stands accused under Indictment No. 19-0958 of one · count each of Promoting (Penal Law §205.25(1]) Law §105.05(1]). that, Prison Contraband in the Degree and Conspiiacy in the Fifth Degree (Penal As set. forth in the Indictment, on or about First February 9, 2019·, it is alleged Defendant,• in Westchester County, New York, wh.ile aiding and abetting and acting in concert with others, unlawfully introduced dangerous contraband into a · detention facility and,. on or about and b~tween January 14, 2019 and February 9, 2019, Defendant and others, with intent· that conduct cons ti tu ting a f elc:iny, _namely Promoting Priso·n Contraband in the First Degree, ~e p~rformed, agreed to en~age in or p~rform· such· conduct. -By. Notice of Motion dat_ed November 30, 2019, with accompanying Affirmation, Defendant moves for omnibus relief. reiponse, In the People have submitted an Affirmation in.Opposition dated December 12-, 2019. The motion is disposed of as follows: [* 2] 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 dismis~ the indictment, or counts thereof, on the grounds that the evidence before the Grand JGry 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 ha_s reviewed the minutes of -th~ ~roceedings 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 elemen_t 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 People v Bello, 92 NY2d 523 (1998); People v Ackies, 79 AD3d 1050 (2 nd Dept 2010). In rendering proof beyond a . reasonable doubt." a determination, "[t]he teviewing 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.fl Bello, supra, quoting People v Boampong, 57 AD3d 794 (2~ Dept 2008-- internal quotations omitted). A review of the minutes re~eals that the evidence presented, if accepted _as true, would be legally sufficient to establish every [* 3] ·- element of the offenses charged (see CPL §210.30[2]j. Defendant's motion to dismiss or reduce for Accordingly, lack of sufficient evidence is denied. With respect proceeding .was to Defendant's claim that defective_ within the meaning the Grand Jury of CPL §210. 35, a review of the minutes supports a finding that a quorum of the grand jurors ~as present during the presentation of evidence and at the- time the distric~ attorney instructed the.Grand Jury on the l~w, that the grand jurors who voted to- indict heard_arl the "es§ential and critical evidence" (see People v Collier, 72 NY2d 298 [1988); People v Juli us, - 300 AD2d 167 [ pt Dept 2002] , 1 v den 99 NY2d 655 [200-3)), 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 m~king -this determination, the -~ourt 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 §710.20(3). to suppress stat~ments pursuant to CPL The People, in their Affirmatio~ in Opposition, state that there were no statements noticed which are attributable t-o Defendant. Consequently, the motion to suppreE?s statements is denied ~ MOTION FOR A MAPP/DUNAWAY HEARING Defendant moves to ~~ppress all physical evidence which the [* 4] People seek to introduce against him at trial alleging.that, inter alia, it was recovered after a search that. was not' based , on I I probable caus~, or the product of a defective search warrant. The People; in their Affirmation in Opposition, state that there was no impropriety in the searches conducted and seizures made and add, in particular, that they were based on probable cause. The People add I that, besides the search of Defendant's . person in~ident to his ~rrest, the searched locations are limited to public areas or a cellular ,telephone privacy and/or• over cannot which assert Defendant had no Defendant standing. thereaft~r contested those assertions. expectation has of not. Consequently, the motion to suppress · physical evidence is granted to· the extent that a pretrial .Mapp/Dunaway hearing is ordered to determine the propriety of ·the seizure of physical Defendant's· person evidence incident recovered upon the to his arrest and is search of in all other respects denied. ~· 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 ~ust notify the Defe~dant 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 [* 5] the Court of the prior -miscbnduct which might unfairly affect hi~ ·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 ~o~ght in their case in chief such as the prior crime used t~ elevate Counts- 2 and 3 of the Indictment to Feiohies, they shall so notify the Court and defense counsel and a Ven timiglia/Molineux hearing ( see People v Ventimiglia, 52 NY2d 350 [ 1981] ; People v . Molin~ux, . 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 pr~~e their· caie in chief. The People are urged to make an appropriate . decision in this regard sufficiently in advance.·of triii to allo~ any Ventimiglia/Molineux hearing to be consolidated and held with the other hearings herein. ~ MOTION TO SEVER FROM CO-DEFENDANTS Defendant moves to sever the trial Qf the instant Indictment from that of his co-dsfendants, asserting that his defense is in conflict with that of the co-defendant, that a joint trial would result in undue prejudice to him, testify at trial, and that, if the·co-d~fendants a joint trial would violate his constitutional rights to a fair.trial and .his iight to cros~-examine witness~~(1) Prejudice from. Joint Trial [* 6] The crimes alleged herein are, the. People argue, · properly joinable because they are part of the same criminal transaction-conspiracy to promote and promotion of• prison contraband. Defendant has failed to demonstrate that the counts are not part of the same criminal transaction. The People are - thus correct that the counts are · j oinable. Consequently, Defendant having failed to demonstrate that the counts were not properly joinable under CPL §200.20, the court has no choice but to decline to sever the trial of this defendant from the trial of the co-defendants. (2 ), Co-Defendant Statements Defendant also asserts that the People have gi~en notice of statements made by co-defendants which inculpate Defendant and in regard to which he would not have the right of cross-examination should those defendants de~line to testify at trial .. See generally Bruton v US, 391 US 123 (1968). In response, . the People assert that it is premature to se~k Suppression where the People have not yet sought to introduce any such statements, nor, _in fact, has the court even ruled on their admissibility. Consequently, the motion to sever is denied-in all ,respects. E..,_ DISCOVERY AND INSPECTION Discovery is granted to the extent provided for -in Criminal Procedure Law Article· 240 and/or provided by the People. i terns set forth in CPL Article 2 4 0 have not If any been provided to Defendant pursuant to the con$ent discovery order in th~ instant [* 7] matter, said items are to be provided forthwith. Further, the bill of particulars set forth in the voluntary disclosure form·provided to Defendant has adequately informed her of the s0bstance of her alleged conduct and in all respects complies with CPL §200.95. The People acknowledge their continuing exculpatory material· (see Brady v Maryland, duty to disclose 373 US 83. [1963] and Giglio v United States, 405 US 150 [1971]) at the earliest possibie date. If the Peopl~ ar~ or beco~e aware of any material which is arguably exc0lpatory but they are not willing to consent to its disclosure, they· are directed· to disclose such material to the Court f¢r 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, discovery is denied as such materia_l or information is beyond the scope of discovery ( see People v Colavito, -87 NY2d.423 [1996]; Ma_tter of Catterson v Jones, 229 AD2d . 435 [2 nd Dept 1996]; Matter of Catterson v Rohl, Dept 1994]; Matter of Brown v Appelman, 1998]). Alt other motions are deni~d~ Dated: White Plains, New York December 17, 2019 202 AD2d 420 [2 nd 241 AD2d 279 [2 nd Dept [* 8] . ·, HON. ANTHONY A. SCARPINO, JR. District Attorney, Westchester County 111 Dr. Martin Luther King Jr. Blvd. White Plains, New York 10601 BY: Cooper W. Gerrie, Esq. Assistant Dist~ict Attorney ANTHONY MATTESI, ESQ: Attorney for. Defendant _l North Broadway, Suite 412 White Plains, ~Y 10601: I . )
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