Opinion
No. CR-026965-21SU
03-09-2023
People of the State of New York, v. Hugo Aparicio, Defendant
For the Defendant: Scott Lockwood For the People: A.D.A. Priyanka Seth for Raymond A. Tierney, District Attorney of the County of Suffolk
Unpublished Opinion
For the Defendant: Scott Lockwood
For the People: A.D.A. Priyanka Seth for Raymond A. Tierney, District Attorney of the County of Suffolk
Edward J. Hennessey, J.
The defendant is charged with endangering the welfare of a child (PL §260.10). It is alleged that, on September 10, 2021, when a 14-year old male bike rider approached the defendant's vehicle, the defendant "began sucking his fingers at the victim and grabbed the victims [sic] right arm trying to get him into his vehicle." The within criminal action commenced on October 1, 2021. The People filed their initial Certificate of Compliance/readiness announcement [hereinafter "CoC"] on November 5, 2021. Six supplemental CoCswere filed during the period from February 28 to December 12, 2022.
By letter notice dated October 29, 2022 the People requested a hearing for purposes of determining the admissibility of a prior uncharged bad act in their case in chief; namely, that in July 2021 the defendant allegedly followed the same bike rider, spoke with him and asked him to enter the defendant's vehicle. The People argue that the evidence of such incident is probative of the defendant's identity in the matter sub judice. The defendant opposes introduction of this evidence. Additionally, the defendant interposes challenges to the People's CoCs and moves for an order directing the People to furnish certain Brady material, to strike certain CoCs and/or for sanctions.
The defendant first argues that the Molineaux / Ventimiglia evidence sought to be introduced should be precluded by reason of the People's late notice of same. Such material is classified as supplemental discovery (CPL 245.20(3)) and, pursuant to CPL 245.10(1)(b), "[t]he prosecution shall perform its supplemental discovery obligations under subdivision three of section 245.20 of this article as soon as practicable but not later than fifteen calendar days prior to the first scheduled trial date." The People assert that they gave reasonable notice of their intent to introduce such evidence based upon when they first became aware of the alleged prior incident, that motion practice has delayed the trial date herein and that no prejudice to the defendant has been shown. The Court notes that, although the current version of CPL Article 245 does contain the above-referenced time frame, introduction of prior bad act evidence has been permitted even when noticed was given at the time of trial (see People v. Tarver, 202 A.D.3d 1368 [3rd Dept 2022] ["'[A] defendant is not entitled as a matter of law to pretrial notice of the People's intention to offer [Molineux] evidence... or to a pretrial hearing on the admissibility of such evidence... Although, to avoid unfairness, 'a prosecutor seeking to introduce Molineux evidence should ask for a ruling out of the presence of the jury, and... any hearing with respect to the admissibility of such evidence should occur either before trial or, at the latest, just before the witness testifies[,]... [t]here is no requirement that such inquiry or ruling occur before trial commences'"], citing People v. Small, 12 N.Y.3d 732 [2009]). As such, the Court will address the People's application on its merits at a Molineaux/Ventimiglia hearing to be held immediately prior to trial.
The defendant also challenges the People's CoC and supplemental CoCs for alleged discovery violations; specifically, with regard to photographs and associated metadata, text messages and other potential Brady material. The defendant seeks to strike the certificate(s), to compel discovery or for sanctions. The standard for determining a proper CoC has been held to be "one which is filed in good faith, reasonable under the circumstance[s], after the exercise of due diligence and reasonable inquiries to ascertain the existence [of] material and information subject to discovery." (See People v. Salters, 72 Misc.3d 1219(A) [Nassau Dist Ct 2021]; see also People v. Rodriguez, 73 Misc.3d 411[Queens Sup Ct 2021]). A review of the moving and answering papers discloses factual disputes as to discovery compliance. The Court is unable to resolve the issue of discovery compliance and the resulting validity of CoC(s) based upon the instant papers. As such, the parties are directed to appear for a compliance conference (CPL 245.35(2)) in order to address discovery issues, their bearing on the validity of the People's CoC and supplemental CoCs and potential discovery sanctions, if any (see CPL 245.80).
Finally, the defendant challenges the sufficiency of the People's October 28, 2022 supplemental CoC. A review of such document reveals that it fails to comply with the statutory requirement that "[a]ny supplemental certificate of compliance shall detail the basis for the delayed disclosure so that the court may determine whether the delayed disclosure impacts the propriety of the certificate of compliance." (CPL 245.50(1-a)). As such, the Court finds said CoC to be insufficient and the defendant's motion to strike same is granted.