People v Villano

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People v Villano 2020 NY Slip Op 34770(U) January 31, 2020 County Court, Westchester County Docket Number: Ind No. 19-0944-01 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 COUNTY COURT: STATE OF NEW YORK COUNTY OF WESTCHESTER ------------------------------------------------------ ·------- .---X THE PEOPLE OF THE STATE OF NEW YORK ON ;).-_j 20!0 WESTCHESTER :-against- ADAN LEON VILLANO JORGE ARCE VILLANO FELICIANO "FELIX" PEREZ BAUTISTA, Defendant. ------------ ·-----------------------------------------------------X MINIHAN,J. DECISION & ORDER Ind No.: 19-0944-01 '.'.. I~ FILED FEB - 5 2020 iJfv10THY C: IDONI . vOUNTY CLERK COUNTY OF WESTCHESTER. Defendant, ADAN LEON VILLANO, charged by Westchester County Indictment No. Ind No.: 19-0944-01 with, acting in concert with co-defendantJorge Arce 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 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 cre~ibility if he elects 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 [2dDept 1985]). [* 2] 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 thefirst 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 make 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. II. MOTION for DISCOVERY, DISCLOSURE and INSPECTION CPL ARTICLE 245 To whatever extent material that is discoverable under Criminal Procedure Law Article 245 has not already been provided to the defense by the People, the defendant's 'motion is granted and such discovery, including both Brady material 1 and Rosario material, shall be provided forthwith. Leave is granted for either party to seek a protective order (CPL Article 245). If the defense has a particularized reason to believe that there remains outstanding discovery with which he has not been provided, he is directed to contact the assigned Assistant District Attorney upon receipt oft order. If the issue remains unresolved within two days of receipt of this order, counsel for the defendant shall contact the court to request an immediate compliance conference. If the People have fulfilled their discovery obligations but have not yet filed a Certificate of Compliance, they are directed to do so forthwith and they are reminded of their continuing obligation to remain in compliance with the discovery mandates set forth in CPL Article 245 and to file supplemental Certificates of Compliance as the need arises. The People recognize their continuing duty to disclose the terms of any deal or agreement made between the People and any prosecution witness at the earliest possible date (see People v Steadman, 82 NY2d 1 [1993]; Giglio v United States, 405 US 150 [1972]; Brady v Maryland, 373 US 83 [1963]; People v Wooley, 200 AD2d 644 [2d Dept 1994]) .. 1 The People acknowledge their continuing duty to disclose exculpatory material (Brady v Maryland, 373 US 83 [1963]; see Giglio v United States,.405 US 150 [1971]). If the People are or l:;,ecome aware of any such material which is arguably subject to disclosure under Brady and its progeny and Criminal Procedure Law Article 245 which they are unwilling to consent to disclose, they are directed to bring it to the immediate attention of the court and to submit it for the court's in camera inspection and determination as to whether it constitutes Brady material discoverable by the defendant. 2 [* 3] Further, the bill of particulars set forth in the voluntary disclosure form provided to defendant has adequately informed defendant of the substance of the alleged conduct and in all respects complies with CPL Article 245 and Section 200.95. III. 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 and that the Grand Jury proceeding was defective within the meaning of CPL 210.35. The court has reviewed the minutes of the proceedings before the Grand Jury. The indictment contains a plain and concise factual statement which, without allegations of an evidentiary nature, asserts facts supporting every element of the offense charged and the defendant's commission thereof with sufficient precision as to clearly apprise the defendant of the conduct which is the subject of the indictment (CPL 200.50). The indictment charges each and every element of the crime, and alleges that the defendant committed the acts which constitute the crime at a specified place during a specified time period and, therefore, is sufficient on its face (People v Cohen, 52 NY2d 584 [1981]; People v Iannone, 45 NY2d 589 [1978]). Pursuant to CPL 190.65(1), an indictment must be supported by legally sufficient evidence which establishes that the defendant committed the offenses charged. The evidence presented, if accepted as true, is legally sufficient to establish every element of the 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 prim.a 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]). A review of the minutes reveals that the evidence presented, if accepted as true, would be legally sufficient to establish every element of the offense charged (CPL 210.30 [2]). Accordingly, defendant's motion to dismiss the indictment is denied. 3 [* 4] Defendant's claim that the Grand Jury proceeding was defective within the meaning of CPL 210.35 is without merit. A review of the minutes reveals that a quorum of the grand jurors was present during the presentation of evidence, and that the Assistant District Attorney properly instructed the Grand Jury on the law and only permitted those Grand Jurors who heard all the evidence to vote the matter (see People v Collier, 72 NY2d 298 [1988]; People v Ca/bud, 49 NY2d 389 [1980]; People v Valles, 62 NY2d 36 [1984]; People v Burch, 108 AD3d 679 [2d Dept 2013]). 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. VI. MOTION to SUPPRESS PHYSICAL EVIDENCE Defendant moves to suppress all physical evidence obtained pursuant to his arrest or 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 and July 18, 2019 search warrant or:ders, 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]). To the extent that defendant has standing to contest any property seized pursuant to the subject search warrants, and to the extent that defendant challenges the sufficiency of the search warrants, that argument fails. Upon review of the four comers of the subject search warrant affidavits, the warrants were 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]). VII. · MOTION to PRECLUDE IDENTIFICATION TESTIMONY CPL 710 Defendant's motion to suppress identification testimony is granted to the limited extent of ordering a pre-trial Wade hearing (see United States v Wade, 388 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 the procedure was unduly suggestive. Where suggestiveness is shown, the People must show the existence of an independent source by clear and· convincing evidence. 4 [* 5] · VIII. MOTION for LEA VE to FILE FUTURE MOTIONS This motion is denied. Should defendant intend to bring further motions for omnibus relief, he must do so by order to show cause setting forth reasons as to why his motion was not and could not have been brought in conformity with CPL 255.20. · The foregoing constitutes the opinion, decision and order of the court. · Dated: White Plains, New York January3/ , 2020 Honorable Anne E: Minihan 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 Mark Fitzmaurice 15 Chester A venue White Plains, NY 10601 . ~--:----L Attorneys for defendant,~Leon Villano 5

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