People v Cox

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People v Cox 2020 NY Slip Op 34910(U) February 5, 2020 Supreme Court, Westchester County Docket Number: Docket No. 19-1143 Judge: Susan M. Capeci 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. FILED AND ENTERED SUPREME COURT OF THE STATE ;JF NEW YORK COUNTY OF WESTCHESTER ------------------------------------------------ ·.... -------------X ONc-1 ~ (o _2o_d_O WESTCHESTER COUNNCLERK THE PEOPLE OF THE STATE OF ~-;:W YORK, DECISION AND ORDER Docket #19-1143 . -against- FILED'~ . TARIQ COX, FEB - 5 2020 Defendan':. --------------- .-------· --. ---------------------- -·. --. ----------X Tlrv'lOTHY C. IDONI COUNlY CLERK COUNTY OF WESTCHESTER The defendant,_ charged by inc.':ctment with two counts of criminal possession of a weapon in the second degree (P.L. 265.03 (3); 265.03(1 )(b)), assault in the second degree (P.L. 120.'05 (2)), criminal mischief in the third degree (P.L. 145.05 (2)), unlawful imprisonment in the first degree (P.L. 135.10), criminal mischief in the fourth degree . ·a (P.L. 145.00 (4)), menacing in the ser·.ond degree (P.L. 120.14 (1)), assault in the third . 1tl \ 1 . degree (P.L. 120'.00 (1 )), endangerin;.\ the welfare of a child (P.L. 260.10 (1 )), and criminal contempt 'in the ~econd degree (P.L.. 215.50 (3)), makes this omnibus motion seeking: 1) inspection of the grand jw·y minutes by the Court and the defendant, and thereafter, for the dismissal of the incl\ctmen~ and/or reduction of the charges contained therein; 2) a SandovalNentimiglia/Mc!ineux hearing; and 3) a reservation of rights to make further pre-trial motions as neci;ssary. The People consent to an in camera review of the grand jury minute$ for legal sufficiency, and consent to a Sandova.lNentimiglia/Molineux hearing, but otherwise oppose the motion. The Court now finds as follows. [* 1] 1. 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 [c] 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. 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 elem:ent of the offense charged and the defendant's commission thereof (CPL §70.1_0[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 gran~ 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 2 [* 2] evidence is denied. With respect to Defendant's claim that the Grand Jury proceeding was defective within the meaning of CPL §210.35,• a revi~w of the minutes supports a finding that a quorl,!m of the grand jurors was preseritduring 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]; Iv den 99 NY2d 655.[20031), and that the Grand Jury was properly instructed (see People v Calbud, 49 NY2d 389 [1980] and People v Valles, 62 NY2d 3_6 [1984]). In making this determination, the Court does not find that release of such portions of the Grand Jury minutes as have not already been disclosed pursuant to CPL Article 245 to the parties was necessary to assist the Court. 2. MOTION FOR SANDOVALNENTIMIGLIA/MOLINEUX HEARING Granted, solely to the extent that SandovalNentimiglia/Molineux hearings, as the case may be, shall be held immediately prior to trial, as follows: A. Pursuant to CPL §245.20, the People must notify the Defendant, not iess than fifteen days prior to the first scheduled date for trial, of all specific instances of Defendant's uncharged misconduct and criminal acts of which the People have knowledge and which the People intend to use at trial for purposes of impeaching the credibility of the Defendant, or as substantive proof of any material issue in the case, ·designating, as the case may be for each act or acts, the intended use (impeachment or substantive proof) for · which t_he act or acts will be offered; a·nd B. · Defendant, at the ordered hearing, must then sustain his burden of informing the Court of the prior misconduct' which might unfairly affect him as a witness in his own 3 . [* 3] ....... behalf (see People v Malphurs, 111 AD2d 266 [2 nd Dept. 1985]). 3. MOTION FOR A RESERVATION OF RIGHTS TO FILE FURTHER PRETRIAL MOTIONS The defendant requests leave to make further motions as necessary. The defendant's motion is denied. CPL 255.20 is controlling with respect to the time frame for m·aking pre-trial motions and there have been no allegations of good cause for making further motions outside of those time constraints. Any such request will be considered at the time it is made. The defendant's further request for any hearings in this case to be held at least 20 days in advance of trial to allow transcription of the hearing minutes is denied. A request for any hearing minutes to be expedited if necessary will be considered at the time it is made. This constitutes the Decision and Order of this Court. Dated: To: February 5, 2020 White Plains, New York HON. SUSAN M. CAPECI A.J.S.C. Hon. Anthony A. Scarpino, Jr. Westchester County District Attorney 111 Dr. Martin Luther King Jr. Blvd. White Plains, New York 10601 Att: Maria I. Wager, Esq. Assistant District Attorney Legal Aid Society, Esq. Attorneys for Defendant 150 Grand Street, Suite 100 White Plains, New York 10601 Att: Jessica Hugel, Esq. 4 [* 4]

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