People v Carmichael
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People v Carmichael 2019 NY Slip Op 34896(U) July 22, 2019 County Court, Westchester County Docket Number: Indictment No. 18-1378 Judge: George E. Fufidio 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. COUNTY COURT: STATE OF NEW YORK COUNTY OF WESTCHESTER ------------------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK -againstBRIAN CARMICHAEL, FILED JUL 3 0 2019 DECISION & ORDER Indictment No.: 18-1378 liMOTHY C. IDONI COUNTY CLERK COUNTY OF WESTCHESTER Defendants. ------------------------------------------------------------------X FUFIDIO, J. Defendant, BRIAN CARMICHAEL, having been indicted on or about April 16, 2019 for aggravated driving while intoxicated as a felony (Vehicle and Traffic Law§ 1192[2-a][a]), driving while intoxicated (Vehicle and Traffic Law § 1192 [3 ]), aggravated unlicensed operation of a motor vehicle in the first degree (Vehicle and Traffic Law§ 511[3][1][i]), criminal mischief in the fourth degree (Penal Law§ 145.00 [3]), unlicensed operation of a motor vehicle (Vehicle and Traffic Law§ 509 [1]) and following another vehicle more closely than is reasonable and prudent, not having due regard for the speed of such vehicles and the traffic upon and the condition of the highway has filed an omnibus motion which consists of a Notice of Motion, an Affirmation in Support and a Memorandum of Law. In response, the People have filed an Affirmation in Opposition together with a Memorandum of Law. Upon consideration of these papers, the stenographic transcript of the grand jury minutes and the Consent Discovery Order entered in this case, this Court disposes of this motion as follows: A. MOTION FOR DISCOVERY, DISCLOSURE AND INSPECTION CPL ARTICLE 240 Except where the People have already disclosed or consented to the inspection and discovery of certain evidence, the Defendant's motion for discovery is granted to the extent provided for in CPL 240. If there any further items discoverable pursuant to Criminal Procedure Law Article 240 which have not been provided to defendant pursuant to this Order, they are to be provided forthwith or the People shall seek a protective order explaining to the Court why certain items have not been provided to the Defendant pursuant to CPL 240. As to the defendant's demand for exculpatory material, the People have acknowledged their continuing duty to disclose exculpatory material at the earliest possible date upon its discovery (see, Brady v Maryland, 373 US 83 [1963]; Giglio v United States, 405 US 150 [1972]). In the event that the People are, or become, aware of any material which is arguably exculpatory and they are not willing to consent to its disclosure to the defendant, they are directed to immediately disclose such material to the court to permit an in camera inspection and determination as to whether the material must be disclosed to the defendant. Except to the extent that the defendant's application has been specifically granted herein, it is otherwise denied as seeking material or information beyond the scope of discovery (see, People v [* 1] Colavito, 87 NY2d 423 [1996]; Matter of Brown v Grosso, 285 AD2d 642 [2d Dept 2001]; Matter of Brown v Appelman, 241 AD2d 279 [2d Dept 1998]; Matter of Catterson v Jones, 229 AD2d 435 [2d Dept 1996]; Matter of Catterson v Rohl, 202 AD2d 420 [2d Dept 1994]). B. MOTION TO INSPECT, DISMISS AND/OR REDUCE The court grants the defendant's motion to the limited extent that the court has conducted, with the consent of the People, an in camera inspection of the stenographic transcription of the grand jury proceedings. Upon such review, the court finds no basis upon which to grant defendant's application to dismiss or reduce the indictment. The grand jury was properly instructed (see People v Calbud, 49 NY2d 389 [1980]; People v Valles, 62 NY2d 36 [1984]; People v Burch, 108 AD3d 679 [2d Dept 2013]). The evidence presented, if accepted as true, is legally sufficient to establish every element of each offense charged (CPL 210.30[2]). "Courts assessing the sufficiency of the evidence before a grand jury must evaluate whether the evidence, viewed most favorably to the People, if unexplained and uncontradicted--and deferring all questions as to the weight or quality of the evidence--would warrant conviction" (People v Mills, 1 NY3d 269, 274-275 [2002]). Legally sufficient evidence means competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof (CPL 70.10[1]; see People v Flowers, 138 AD3d 1138, 1139 [2d Dept 2016]). "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 Jessup, 90 AD3d 782, 783 [2d Dept 2011]). "The reviewing court's inquiry is limited to whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crimes, and whether the Grand Jury could rationally have drawn the guilty inference. That other, innocent inferences could possibly be drawn from those facts is irrelevant to the sufficiency inquiry as long as the Grand Jury could rationally have drawn the guilty inference" (People v Bello, 92 NY2d 523, 526 [1998]). This prong of the Defendant's motion is denied. Additionally, the Court finds that the Defendant has not met his high burden of demonstrating that the integrity of the grand jury proceedings was impaired by any error, let alone one that would render the proceedings defective and prejudicial to the Defendant (People v Darby, 75 NY2d 449 [1990], People v Thompson, 22 NY3d 687 [2014]), nor does the Court find that there was any such error. Among other things the minutes reveal a quorum of the grand jurors was present during the presentation of evidence, that the Assistant District Attorney presented the evidence fairly and properly instructed the grand jury on the law and only permitted those grand jurors who heard all the evidence to vote the matter. Accordingly, this prong of the defendant's motion is also denied. Finally, with respect to the allegation that the People should have presented exculpatory evidence in the form of a car stop video and video of the Defendant while at the police station. While a prosecutor must present exculpatory evidence that serves to materially influence the ultimate decision to indict or not, or could potentially eliminate a needless prosecution, they are not obligated to search for evidence favorable to the defense or present evidence in their possession that is favorable to the accused even though it would allow the grand jury to make a more informed decision (People v Lancaster, 69 NY2d 20 [1986]). Generally, if the Defendant wishes such information to be presented to the grand jury, he has the ability to testify on his own behalf and to call others to present such evidence (id. at 25-26). Importantly, the Defendant has not even shown how this information would have materially influenced 2 [* 2] the grand jury's decision nor shown that it would have prevented ~ needless prosecution. Accordingly, this prong of the Defendant's motion is also denied. Based upon the in camera review, since this court does not find release of the grand jury minutes or any portion thereof necessary to assist it in making any determinations and as the defendant has not set forth a compelling or particularized need for the production of the grand jury minutes, defendant's application for a copy of the grand jury minutes is denied (People v Jang, 17 AD3d 693 [2d Dept 2005]; CPL 190.25[4][a]). C. MOTION TO STRIKE STATEMENT NOTICES The motion to strike is denied. Said notices are in conformity with the statutory requirements of CPL 710.30 in that they set forth the date, the method by with which the statements were recorded, where the statements were made and the substance of the statements, which is more information than they are even required to contain (People v Lopez, 84 NY2d 425 [1994]). They were also served within the proper time frame (CPL 710.30). Finally, because the Defendant has filed a suppression motion based upon the notices that were served, he has waived his right to be heard on the sufficiency of the notices (People v Kirkland, 89 NY2d 903 [1996]). D. MOTION TO SUPPRESS PHYSICAL EVIDENCE A Mapp/Dunaway hearing will be conducted prior to trial to determine the propriety of the search resulting in the seizure of property (Mapp v. Ohio, 367 US 643 [1961]). The hearing will also address whether any evidence was obtained in violation of the defendant's Fourth Amendment rights (see Dunaway v·New York, 442 US 200 [1979]). This includes, but is not limited to the search made of the car the Defendant was driving and whether or not he validly consented to having his blood drawn and tested and whether or not the blood was properly drawn as the People allege. E. MOTION TO SUPPRESS STATEMENTS The Court grants the Defendant's motion to the extent that a Huntley hearing shall be held prior to trial to determine whether any statements allegedly made by the Defendant, which have been noticed by the People pursuant to CPL 710.30 (l)(a) were involuntarily made by the Defendant within the meaning of CPL 60.45 (see CPL 710.20 (3); CPL 710.60 [3][b]; People v Weaver, 49 NY2d 1012 [1980]), obtained in violation of Defendant's Sixth Amendment right to counsel, and/or obtained in violation of the Defendant's Fourth Amendment rights (see Dunaway v New York, 442 US 200 [1979]). F. MOTION TO SUPPRESS IDENTIFICATION TESTIMONY This motion is granted to the extent that a hearing shall be held to consider whether or not the noticed identifications made of the Defendant were unduly suggestive (United States v Wade, 388 US 218 [1967]). Specifically, the court shall determine whether the identifications were so improperly suggestive as to taint any in-court identification. In the event the identifications are found to be unduly suggestive, the court shall then go on to consider whether the People have proven by clear and convincing evidence that an independent source exists for such witness' proposed in-court identification 3 [* 3] ·1 G. MOTION FOR SANDOVAL AND VENTIMIGLIA HEARINGS The Defendant has moved for a pre-trial hearing to permit the trial court to determine the extent, if at all, to which the People may inquire into the Defendant's prior criminal convictions, prior uncharged criminal act, and vicious or immoral conduct (see, People v Sandoval, 34 NY2d 371[1974]). The People have consented to, and it is now ordered that immediately prior to trial the court will conduct a Sandoval hearing. At the hearing, the People are required to notify the Defendant of all specific instances of his criminal, prior uncharged criminal acts and vicious or immoral conduct of which they have knowledge and which they intend to use in an attempt to impeach the Defendant's credibility if he elects to testify at trial (CPL 240.43). The Defendant shall then bear the burden ofid~ntifying any instances of his prior misconduct that he submits the People should not be permitted to use to impeach his credibility. The Defendant shall be required to identify the basis of his belief that each event or incident may be unduly prejudicial to him should he decide testify as a witness on his own behalf and thereby prevent him from exercising this right (see, People v Matthews, 68 NY2d 118 [1986]; People v Malphurs, 111 AD2d 266 [2d Dept 1985]). The Defendant's application for a Ventimiglia hearing is denied as premature, because the People have not indicated an intention to use any evidence of prior bad act or uncharged crimes of the Defendant in its case in chief (see, People v Molineaux, 168 NY2d 264 [1901]; People v Ventimiglia, 52 NY2d 350 [1981]). The People have stated that if they do intend to use any Molineaux evidence that they will inform the defense and the court of their intention and at that point the Defendant may renew this aspect of his motion. H. MOTION TO STRIKE ALIBI NOTICE The Defendant's motion to strike the alibi notice is denied. Contrary to the Defendant's contentions, it is well-settled that CPL 250.00 is indeed in compliance with the constitutional requirements (see People v Dawson, 185 AD2d 854 [2d Dept 1992]; People v Cruz, 176 AD2d 751 [2d Dept 1991]; People v Gill, 164 AD2d 867 [2d Dept 1990]) and provides equality in the required disclosure (People v Peterson, 96 AD2d 871 [2d Dept 1983]; see generally Wardius v Oregon, 412 US 470 [1973]). The foregoing constitutes the opinion, decision and order of this Court. Dated: White Plains, New York July 'lJ.- , 2019 Honorable Georg Westchester Coun 4 [* 4] Court Justice ,, To: HON. ANTHONY A. SCARPINO, JR. District Attorney, Westchester County 111 Dr. Martin Luther King, Jr. Boulevard White Plains, New York 10601 BY: ELIZABETH J. KNOWLTON, ESQ. Assistant District Attorney MARIA I. WAGER, ESQ. Assistant District Attorney CLARE J. DEGNAN, ESQ. The Legal Aid Society of Westchester County 150 Grand Street, Suite 100 White Plains, New York 10601 BY: LYNETTE V. SPAULDING, ESQ. 5 [* 5]
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