People v Waller
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People v Waller 2021 NY Slip Op 33150(U) January 7, 2021 County Court, Westchester County Docket Number: Ind. No.18-1312 Judge: David S. Zuckerman 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] COUNTY COURT: STATE OF NEW YORK COUNTY OF WESTCHESTER ----------------------------------x THE PEOPLE OF THE STATE OF NEW YORK "-. FfJ_EQ4f' -against- J,~N t ·s 1.G11 JOSEPH WALLER, DECISION & ORDER Ind. No.: 18-1312 'Tf'Mf)TN"Y C Jf;ONI COUN'N ~Lf:RK ~h(iQfi~ESTCHESTER -----------------------------------x ZUCKERMAN, J. Defendant stands accused under Indictment No. 20-0274 of two counts of Burglary in the Second Degree Burglary in the Third Degree (Penal (Penal Law §140.25[2]), Law §140. 20), Attempted Burglary in the Third Degree (Penal Law §110/140.20), two counts of Grand Larceny in the Fourth Degree (Penal Law §155.30[2]), two counts of Criminal Possession of Stolen Property in the Fourth Degree (Penal Law §165.45[2]), Identity Theft in the Third Degree (Penal Law §190.78), Unlawful Possession of Personal Identifying Information in the Third Degree (Penal Law §190.81), three counts of Petit Larceny (Penal Law §155. 25), Stolen Property in the Fifth Degree Stripping in the Third Degree Mischief forth the September 12, entered or Indictment, 2018, remained Possession of (Penal Law §165. 40), Auto (Penal Law §165.09), and Criminal in the Fourth Degree in Criminal it Defendant, unlawfully (Penal Law §145. 00 [1]) . is alleged that, on in Westchester County, in a premises with As set or ·about New York, intent to [* 2] commit a crime therein; stole property belonging to another; did unlawfully remove or destroy parts of a vehicle, and did damage property of another. December 16, entered 2016, or It is also Defendant, remained alleged that, on or in Westchester County, unlawfully in a premises with about New York, intent to commit a crime therein, and stole property belonging to another valued in excess of indictment that, Westchester $1,000.00. on County, or New It is further alleged in the about May 18, York, attempted 2018, to Defendant, enter or in remain unlawfully in a building with intent to commit a crime therein; stole property belonging to another valued in excess of $1,000.00 and possessed said property; with intent to defraud, assumed the identity of another person, and thereby obtained represented himself as that person property of said person; unlawfully possessed personal identifying information of such person; stole property belonging to two other persons; and, knowing it was stolen, possessed property stolen from and belonging to another person. By Notice of Motion dated December 4, 2020, accompanying Affirmation, Defendant moves for omnibus relief. response, with In the People have submitted an Affirmation in Opposition dated December 22, 2020. The motion is disposed of as follows: [* 3] DISCOVERY 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. granted leave, if required, Any party is to apply for a Protective Order in compliance with CPL Article 245, party and any party affected by upon notice said to the Protective opposing Order. The People are directed to file a Certificate of Compliance with CPL Article 245 and the instant Order upon completion of their obligations thereunder, if they have not already done so. People's granted cross-motion to the for extent reciprocal provided for discovery in Criminal is The likewise Procedure Law Article 245, and/or already provided to the People. The People are further reminded that any response to a demand for a bill of particulars by Defendant shall adequately inform Defendant of the substance of the alleged conduct, and in all respects comply with CPL Article 245 and §200.95, within 15 days of the date of the request. In addition, pursuant to Administrative Order 393/19, it is ORDERED that the District Attorney and the Assistant District Attorney responsible for the case, are required to make timely disclosure of information favorable to the defense as [* 4] required by Brady v Maryland, States, 405 US 150 373 US 83 [1963]; Giglio v United [1972]; People v Geaslen, 54 NY2d 510 [1981]; and their progeny under the United States and New York State Constitutions and by Rule 3.8(b) of the New York State Rules of Professional Conduct; and it is further ORDERED, that the District Attorney and the Assistant District Attorney responsible for the case or, ·if the matter is not being prosecuted by the District Attorney, the prosecuting agency and its assigned representatives, have a duty to learn of such favorable information that is known to others acting on the government's behalf in the case, including the police, and are therefore expected to confer with investigative and prosecutorial personnel who acted in the case and to review all files which are directly case. related For to purposes the of prosecution or this Order, investigation of favorable this information can include but is not limited to: a) Information that impeaches the credibility of a testifying prosecution witness, including (I) benefits, promises, or inducements, express or tacit, made to a witness by a law enforcement official or law enforcement victim services agency in connection with giving testimony or cooperating in the case; (ii) a witness's prior inconsistent statements, written or oral; (iii) a witness's prior convictions and uncharged criminal [* 5] conduct; (iv) information that tends to show that a witness has a motive to lie to inculpate the defendant, or a bias against the defendant or in favor of the complainant or the prosecution; and (v) information that tends to show impairment of a witness's ability to perceive, or recall, recount relevant events, including impairment resulting from mental or physical illness or substance abuse; b) Information that tends to exculpate, reduce the degree of an offense, or support a potential defense to a charged offense; c) Information that tends to mitigate the degree of the defendant's culpability as to a charged offense. or to mitigate punishment; d) Information that tends to undermine evidence of the defendant's identity as a perpetrator of a charged crime, such as a non-identification of the defendant by a witness to a charged crime or an identification or other evidence implicating another person in a manner that tends to cast doubt on the defendant's guilt; and e) Information that could affect in the defendant's favor the ultimate decision on a suppression motion; and it is further ORDERED, that the District Attorney and the Assistant District Attorney responsible for the case or any other agent [* 6] prosecuting the case is hereby advised of his/her duty to disclose favorable information whether or not such information is recorded in tangible form and irrespective of whether the prosecutor credits the information; and it is further that ORDERED, the District District Attorney responsible responsible for the Attorney and the Assistant for the case or any other agent prosecution of the case is directed that favorable information must be timely disclosed in accordance with the United States and New York State constitutional standards, as well as CPL Article 245. Disclosures are presumptively "timely" if they are completed no later than 30 days before commencement of trial in a felony case and 15 days before commencement of trial in a misdemeanor case. Records of a judgment of conviction or a pending criminal action ordinarily are discoverable within the time frame provided in CPL Article 245. pertain to a Disclosures that suppression hearing are presumptively "timely" if they are made no later than 15 days before the scheduled hearing date; and it is further ORDERED, that the District District Attorney responsible Attorney and the Assistant for the case or any other agent responsible for the prosecution of the case is hereby reminded and informed that his/her obligation to disclose is a continuing one; and it is further ORDERED, notwithstanding the foregoing, that a prosecutor [* 7] may apply for a protective order, which may be issued for good cause, and CPL Article 245 shall be deemed to apply, with respect to disclosures required under this Moreover, Order. the prosecutor may request a ruling from the court on the need for disclosure. Only willful and deliberate conduct will constitute a violation of this Order or be eligible to result in personal sanctions against a prosecutor; and it is further ORDERED, a) that counsel for the defendant is required to: confer with required to keep the defendant the defendant about his/her informed about case all and is significant developments in the case; and b) timely communicate any and all plea offers to the defendant and to provide him/her with reasonable advice about the advantages and disadvantages of any such plea offer including the potential sentencing ranges _that apply in the case; c) where applicable, insure the defendant receives competent advice concerning immigration consequences as required under Padilla v Kentucky, 559 US 356 [2010); d) perform a reasonable investigation of the facts and the law pertinent to the case (including, as applicable, visiting the scene, interviewing witnesses, subpoenaing pertinent materials, consulting experts; inspecting exhibits, materials issues, obtai.ned etc.) or, from as the reviewing all discovery prosecution, appropriate, researching making a legal reasonable [* 8] professional judgment not to investigate a particular matter; e) comply with the requirements of the New York State Rules of Professional Conduct regarding conflicts of interest, and when appropriate, timely notify the court of a possible conflict so that an inquiry may be undertaken or a ruling made; f) possess or acquire a reasonable knowledge and familiarity with criminal and procedural law evidentiary ensure to constitutionally effective representation in the case; and g) in CPL in accordance with statute, provide notices as specified sections 250.10, 250.20 and 250.30. (e.g., a demand, intent to introduce the evidence, etc.) ~ MOTION TO SUPPRESS IDENTIFICATION/FOR A WADE HEARING A review indicates that, Defendant with several of the pursuant notice of of an improprieties employed to identify him. and to CPL §710.20(3), identification Defendant photo-arrays. constitutional Indictment in asserts the attached the People that whether namely there identification were procedures The People argue that the showing here They also in any event, the witness had an independent source for the identifications. hearing. served procedure, several photo-arrays was not unduly suggestive. assert that, Notices The People do, however, consent to a Consequently, a hearing is ordered, first to determine the suggestive noticed (United identification States v Wade, procedures 388 us were 218 unduly [1967] ) . [* 9] Specifically, court the identification procedures taint any were so improperly suggestive In identification. in-court the whether determine shall as event the to the identification procedures are found to be unduly suggestive, the court shall then go on to consider whether the People have proven that an independent source exists for each witness' proposed incourt identification. Q_,_ MOTION FOR A HUNTLEY HEARING Defendant moves, noticed pursuant statements. Opposition, acquisition state of The that the to CPL in People, there were statements §710.20(3), no their suppress Affirmation improprieties attributable However, they do consent to a hearing. to to in regarding Defendant. Consequently, the motion to -suppress noticed statements is granted to the extent that a pre-trial Huntley/Dunaway hearing is ordered. ~ MOTION TO INSPECT THE GRAND JURY MINUTES AND TO DISMISS AND/OR REDUCE THE INDICTMENT Defendant moves pursuant dismiss the indictment, to CPL §§210. 20 (1) (b) or counts thereof, and © to 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 [* 10] by legally defendant sufficient committed the evidence which establishes offenses charged. that Legally the sufficient evidence is competent evidence which, if accepted as true, would establish each and every element of the offense charged and the defendant's Jennings, commission 69 NY2d 103 proceeding, legal crimes charged, Bello, Dept §70 .10 [1] ) ; People prima facie proof. of not proof beyond a reasonable doubt. In (1998); People rendering v "In the context of a grand jury [1986]). sufficiency means 92 NY2d 523 2010). (CPL thereof a v 11 the People v (2 nd 79 AD3d 1050 Ackies, determination, "[t]he court's inquiry is limited to whether the facts, reviewing 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 supra, have drawn the quoting People v Boampong, inference of 57 AD3d 794 guilt. 11 Bello, (2 nd Dept 2008-- internal quotations omitted). A review of the minutes reveals that the evidence presented, if accepted as true, every element of the would be legally sufficient to establish offenses charged (see CPL §210.30[2]). Accordingly, Defendant's motion to dismiss or reduce for lack of sufficient evidence is denied. 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 [* 11] 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" 72 NY2d (see People v Collier, 298 [1988]; People v Julius, 300 AD2d 167 [1 st Dept 2002], lv den 99 that NY2d 655 [2003]), and the Grand Jury was properly instructed (see People v Calbud, 49 NY2d 389 [1980] 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. ~ MOTION FOR SANDOVAL/VENTIMIGLIA/MOLINEUX HEARING Granted, solely the to that extent Sandoval/Ventimiglia/Molineux hearings, as the case may be, shall be held immediately prior to trial, as follows: A. Pursuant to CPL §245. 20, Defendant, not less scheduled date for than fifteen trial, of the People must notify the days all prior specific to the first 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 designating, as proof the of case any may material be for issue each act in or the acts, case, the [* 12] intended use (impeachment or substantive proof) for which the act or acts will be offered; and 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 behalf (see, People v. Malphurs, 111 AD2d 266 [2 nd Dept. 1985]). All other motions are denied. Dated: White Plains, New York January 7, 2021 HON. DAVIDS. ZUCKERMAN, A.J.S.C. HON. ANTHONY A. SCARPINO, JR. District Attorney, Westchester County 111 Dr. Martin Luther King Jr. Blvd. White Plains, New York 10601 BY: Pavel Williams, Esq. Assistant District Attorney S. KEN JONES, ESQ. Office of Clare J. Degnan, Legal Aid Society of Westchester County Attorney for Defendant 150 Grand Street, Suite 100 White Plains, NY 10601
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