People v Kinlaw

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People v Kinlaw 2020 NY Slip Op 35582(U) September 18, 2020 County Court, Westchester County Docket Number: Indictment No. 20-0067 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: ST ATE OF NEW YORK COUNTY OF WESTCHESTER ------------------------------------------------------------------X THE PEOPLE OF THE ST ATE OF NEW YORK -againstMICHAEL KINLAW, DECISION & ORDER Indictment No.: 20-0067 FILED '- ---------------------------------------------~~-~~~-~~:~--------~EP 2 1 2020 FUFIDIO, J. TIMOTHY C. IDONI COUNTY CLERK COUNTY OF WESTCHESTER~ Defendant, MICHAEL KINLAW, having been inaicted on or aoom l'ebruary 12, 2020, on one count of assault in the first degree (Penal Law§ 120.10 [1]); one count ofassult in the second degree (Penal Law § 120.05 [2]); and two counts of criminal possession of a weapon in the second degree (Penal Law§ 265.35[1]) 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 this Court disposes of this motion as follows: A & F. MOTION FOR DISCOVERY, DISCLOSURE AND INSPECTION Defendant's motion for discovery is granted to the extent provided for in Criminal Procedure Law Article 245 and/or already provided by the People. If any items set forth in CPL Article 245 have not already been provided to Defendant pursuant to that Article, said items are to be provided forthwith. Any party is granted leave, if required, to apply for a Protective Order in compliance with CPL Article 245, upon notice to the opposing party and any party affected by said Protective Order. The People are directed to file a Certificate of Compliance with (::PL Article 245 and the instant Order upon completion of their obligations thereunder, if they have not already done so. Any cross-motion for reciprocal discovery is likewise granted to the extent provided for in Criminal Procedure Law Article 245, and/or already provided to the People. · 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. 8. MOTION FOR A BILL OF PARTICULARS The Defendant's motion for a Bill of Particulars is denied. The Defendant has never requested one per CPL 200.95[2] and to the extent that the motion for one is such a request, it is [* 1] untimely (CPL 200.95[3]). In any event, given the amount of discovery that is provided under CPL Article 245, the Defendant has ample information around which to construct his defense (CPL 200.95[5]). C. MOTION TO INSPECT AND THE GRAND JURY MINUTES AND TO DISMISS AND/OR REDUCE THE INDICTMENT Defendant moves pursuant to CPL §§210.20(l)(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 element 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 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 grand 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]). With respect to Defendant's claim that the Grand Jury proceeding was defective within the meaning of CPL §210.35, a review of the minutes supports a finding that a quorum of the grand jurors was present during 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 [151 Dept 2002], Iv den 99 NY2d 655 [2003]). The Grand Jury was properly instructed (see People v Ca/bud, 49 NY2d 389 [l 980] and People v. Valles, 62 NY2d 36 [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. D. MOTION TO SUPPRESS IDENTIFICATION TESTIMONY This motion is granted to the limited extent of that a hearing shall be held prior to trial to detern1ine whether, as the People suggest, the identifying witnesses had a sufficient prior familiarity with the Defendant as to render them impervious to police suggestion (People v Rodriguez, 79 NY 2d 445 [ 1992]). In the event the court finds that there was not a sufficient prior familiarity with the Defendant on the part of the witness, the court will then consider whether or not the noticed identifications were unduly suggestive ( Uniled Stales v Wade, 388 US 218 [l 967]). Specifically, [* 2] 3 the court shall determine whether the identifications were so improperly suggestive as to taint any in-court identification. In the further 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. E. MOTION FOR SANDOVALIVENTJMJGLJA/MOLINEUXHEARING Granted, solely to the extent that Sandoval/Ventimiglia/Molineux hearings, as the case may be, shall be held immediately prior to trial, as follows: I. Pursuant to CPL §245.20, the People must notify the Defendant, not less 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 the act or acts will·be offered; and II. 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 behalf (see, People v. Malphurs, 111 AD2d 266 [2 nd Dept. 1985]). i · I . j 1 G. MOTION TO STRIKE PREJUDICIAL LANGUAGE I '·1 I The defendant moves to strike certain language from the indictment on the grounds that it is surplusage, irrelevant or prejudicial. The language concluding the indictment merely identifies the defendant's acts as public, rather than private wrongs and such language should not be stricken as prejudicial. This motion is denied (see, People v Gill, 164 AD2d 867 [2d Dept 1990]; People v Winters, 194 AD2d 703 [2d Dept 1993]; People v Garcia, 170 Misc. 2d 543 [Westchester Co. Ct. 1996]). H. 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 ofDefen~ant'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]). I. MOTION TO SUPPRESS PHYSICAL EVIDENCE AND CONTROVERT SEARCH WARRANTS ' ' ! I ' ' ' [* 3] ;J 4 The Defendant lacks standing to challenge evidence seized from the parking lot and from the shooting victim. · Upon the Court's review of the four comers of the search warrant affidavits and orders, the court finds that the warrants were adequately supported by probable cause to believe that evidence at the locations searched could tend to show that the offense was committed and that the defendant was the one who committed it (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]). The Court grants the Defendant's motion solely to the extent that Mapp and Dunaway · hearings are directed to be held prior to trial to determine the propriety of any search resulting in the seizure of property (see, Mapp v Ohio, 367 US 643 [1961]) and whether any evidence was obtained in violation of the defendant's Fourth Amendment rights (see, Dunaway v New York, 442 US 200 [1979]) and whether there was probable cause to arrest the defendant. The foregoing constitutes the opinion, decision and order of this Court. Dated: White Plains, New York September / 2020 I, er County [* 4] 5 To: HON. ANTHONY A. SCARPINO, JR. District Attorney, Westchester County 111 Dr. Martin Luther King, Jr. Boulevard White Plains, New York 1060 I BY: VIRGINIA A. MARCIANO, ESQ Assistant District Attorney MARIA I. WAGER, ESQ. Assistant District Attorney BRENDAN O'MEARA, ESQ. Attorney for the Defendant 200 East Post Road White Plains, New York 10601 ) [* 5]

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