People v Villano

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People v Villano 2020 NY Slip Op 34769(U) February 4, 2020 County Court, Westchester County Docket Number: Ind No. 19-0944 Judge: Anne E. Minihan 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 AND ENTERED ON.J.4 20tlO COUNTY COURT: STATE OF NEW YORK · COUNTY OF WESTCHESTER WESTCHESTER ------------------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK -~gainst- DECISION & ORDER I ADAN LEON VILLANO JORGE ARCE VILLANO FELICIANO "FELIX" PEREZ BAUTISTA, ~I LE [)44 1FEa - 5 2020 · TIMOTHY C. IDONI . Defendant. COUNTY CLERK ______ .-------------------------------------------------------- CS(UNTY OF WESTCHESTER MINIHAN, J . . Defendant JORGE ARCE VILLANO, charged by Westchester County Indictment No. . 19-0944 with, acting in concert with codefendant Adan Leon Villano, Manslaughter·in the First . Degree (Penal-Law§ 125.20[1]) and Gang Assault in the First Degree (Penal Law§ 120.07), has ' filed an omnibus motion consisting of a Notice of Motion, an Affirmation; and a Memorandum of Law. In response thereto, 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, the court disposes of the motion as follows: I.. MOTION to INSPECT and DISMISS CPL ARTICLE 190 Defendant moves pursuant to CPL 210.20 to dismiss the indictment on the grounds that the evidence before the Grand Jury was legally insufficient. The court has reviewed the minutes of the proceedings before the Grand-Jury. Contrary to defendant's claim, the evidence presented, if accepted as true, is legally sufficient to establish every element of the offenses charged (CPL 210.30[2]); thus, defendant's motion to dismiss on that basis is denied. Pursuant to CPL 190.65(1 ), an indictment must be suppor:ted by legally sufficient evidence which establishes that the defendant committed the offenses charged. "Courts assessing the sufficiency of the evidence before a gran4 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" [* 2] ' '· (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 52-3, 526 [1998]). Contrary to defendant's specific claim, there was legally sufficient evidence before the grand jury that codefendant Adan Leon Villano was not the sole actor but, rather, was aided and abetted by defendant. In making the present determination, the court does not find it necessary to order release of those portions of the Grand Jury minutes as constitute colloquies or instructions. · II. MOTION to PRECLUDE STATEMENT TESTIMONY CPL 710 The People served CPL 710.30(1)(a) notice of a statement allegedly made by defeJ?.dant on July 11, 2019 at approximately 12:44 p.m. to detectives at the Yonkers Police Department. The motion to suppress is granted to the extent of ordering a pretrial Huntley hearing to determine whether the statement was involuntarily made by 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]), and/or obtained in violation of defendant's Fourth Amendment rights (see Dunaway v New York, 442 us 200 [1979]). III. MOTION to PRECLUDE IDENTIFICATION TESTIMONY CPL 710 The People served CPL 710.30(1)(b) notice of three identifications of defendant at the Yonkers Police Department; two on July 9, 2019 - - one at approximately 10:00 p.m. from a video and one at approximately 10:38 p.m. from a single photo, and one on July 11, 2019 at 7:43 p.m. from a photographic array. Defendant's motion to suppress identificatton testimony is granted to the limited extent of ordering a pre-trial Wade hearing (see United States v Wade, 38~ US 218 [ 1967]). At the hearing, the People bear the initial burden of establishing the reasonableness of the police conduct and the lack of any undue suggestiveness (see People v Chipp, 75 NY2d 327,335 [1990] cert. denied 498 US 833 [1990]; People v Berrios, 28 NY2d 361 [1971]). Once that burden is met, the defendant bears the ultimate burden of proving that t.he procedure was unduly suggestive. Where suggestiveness is shown, the People must show the existence of an independent source by clear and convincing evidence. 2 [* 3] IV. MOTION to SUPPRESS PHYSICAL EVIDENCE Defendant moves to suppress all physical evidence on the basis that his arrest was unlawful. Alternatively, defendant moves for a Mapp/Dunaway hearing. To the extent that defendant moves to suppress any evidence obtained pursuant to the July 11, 2019 search warrant order pertaining to his home, that branch of the motion is denied. The results of a search conducted pursuant to a facially sufficient search warrant are not subject to a suppression hearing (People v Arnau, 58 NY2d 27 [1982]). Upon review of the four comers of the supporting search warrant affidavit, the warrant was adequately supported by probable cause (see People v Keves, 291 AD2d 571 [2d Dept 2002]; see generally People v Badilla, 130 AD3d 744 [2d Dept 2015]; People v Elysee, 49 AD3d 33 [2d Dept 2007]). Defendant's motion to suppress physical evidence is granted solely to the extent of ordering a pre-trial Mapp hearing to determine the propriety of any search, not pursuant to a search warrant, which resulted in the seizure of property (see Mapp v Ohio, 367 US 643 [1961]). The hearing will also address whether any evidence was obtained in violation of defendant's Fourth Amendment rights (see Dunaway v New York, 442 US 200 [1979]). V. MOTION FOR a SEVERANCE and FOR a SEPARATE TRIAL The defendant moves for a severance from his co-defendants and for a separate trial. The defendant was properly joined in the indictment (CPL 200.40[l][d]). While the court may, in its discretion and for good cause shown, order that defendant be tried separately, defendant failed to demonstrate good cause for severance. Where the proof against all defendants is supplied by the same evidence, "only the most cogent reasons warrant a severance" (People v Bornholdt, 33 NY2d 75, 87 [1973]; People v Kevin Watts, 159 AD2d 740 [2d Dept 1990]). "[A] strong public policy favors joinder, because it expedites the judicial process, reduces court congestion, and avoids the necessity of recalling witnesses" (People v Mahboubian, 74 NY2d 174, 183 [1989]). Defendant's claim that severance is necessary because statements of his codefendants could inculpate him and may ultimately result in a Bruton violation is premature. In Bruton v United States, 391 US 123 [1968], the Supreme Court held that the admission of a confession made by one defendant, who does not testify, and which contains references implicating his codefendarit, violates the latter's right of cross-examination under the Confrontation Clause. The court noted that there is· a substantial risk that the jury, even with limiting instructions, may consider the implicating references in determining the codefendant's guilt. Unless the implicating references can be effectively deleted, the statement is not admissible unless separate trials are had. However, the New York Court of Appeals has defined certain instances where the Bruton rule would not be violated including where the confessing defendant testifies at the trial, thus affording the codefendant an opportunity to cross-examine him (see People v Anthony, 24 NY2d 696 [ 1969]) and where the codefendant has himself confessed substantially to the same effect as the confessing defendant (People v McNeil, 24 NY2d 550 [1969]). Defendant's motion is denied as premature, with leave to renew. 3 [* 4] ' ' . VI. MOTION for SANDOVAL and VENTIMIGLIA HEARINGS 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, vicious or immoral conduct. On the People's consent, the court orders a pre-trial hearing pursuant to People v Sandoval (34 NY2d 371 [1974]). At said hearing, the . People shall notify the defendant, in compliance with CPL Article 245, and in any event not less than 15 days prior to the first scheduled trial date, of all specific instances of defendant's criminal, prior uncharged criminal, vicious or immoral conduct of which they have knowledge and which they intend to use to impeach defendant's credibility if he eiects to testify at trial. At the hearing, the defendant shall bear the burden of identifying 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 ability to testify as a witness on his own behalf (see People v Matthews, 68 NY2d 118 [1986]; People v Malphurs, 111 AD2d 266 [2d Dept 1985]). Upon the consent of the People, if the People determine that they will seek to introduce at trial evidence in their case-in-chief of any prior uncharged misconduct and criminal acts of the defendant, the People shall notify the court and defense counsel, in compliance with CPL Article 245, and in any event not less than 15 days prior to the first scheduled trial date, 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 any such evidence may be used by the People to prove their case-in-chief. The People are urged to ma~e an appropriate decision in this regard sufficiently in advance of trial to allow any Ventimiglia/ Molineux hearing to be consolidated and held with any other hearings ordered herein. The foregoing constitutes the opinion, decision and order of the c Dated: White Plains, New York· February 2020 f, Acting Supreme Court Justice To: HON. ANTHONY A. SCARPINO, Jr. District Attorney, Westchester County 111 Dr. Martin Luther King, Jr., Blvd. White Plains, NY 10601 Attn: A.D.A. Shea Scanlon Lomma Robert G. Schneider, Esq. 498A Heritage Hills Somers, NY 10589 Attorneys for defendant, Jorge Arce Villano 4

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