Opinion
Indictment 19-0332-07
07-02-2019
THE PEOPLE OF THE STATE OF NEW YORK v. WALTER DANIELS a/k/a "T," KEITH HOLLAR a/k/a "BLAZE," JOSHUA QUINONES a/k/a "H," JAMES HEWLIN a/k/a "TEEKO" a/k/a "TEEKUS," ROY ROGERS a/k/a "FOX," LEON BROOKS a/k/a "ZACK," SAMUEL FORBES a/k/a "JUNIOR," RODERICK RIVERS a/k/a "JUJU," EDVIN MORALES, WILLIAM RUTHERFORD a/k/a "UNIQUE," VICTOR JUSTICE a/k/a "VIC," LAMONT KILLIAN Defendant.
HON. ANTHONY A. SCARPINO, JR. District Attorney, Westchester County Attn: A.D.A. Cooper W. Gorrie. Mark Fitzmaurice, Esq. Attorney for defendant Forbes
Unpublished Opinion
HON. ANTHONY A. SCARPINO, JR. District Attorney, Westchester County Attn: A.D.A. Cooper W. Gorrie.
Mark Fitzmaurice, Esq. Attorney for defendant Forbes
DECISION & ORDER
Hon. Anne E. Minihan, A.J.S.C.
Defendant is charged by Westchester County Indictment Number 19-0332-07, acting in concert with all other codefendants, with Enterprise Corruption (Penal Law § 460.20) and Conspiracy in the Fourth Degree (Penal Law § 105.10[1]), and is charged separately with Criminal Sale of a Controlled Substance in the Third Degree (Penal Law § 220.39[1]) (two counts), and has filed an omnibus motion which consists of a Notice of Motion and an Affirmation in Support. 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 and the Consent Discovery Order entered in this case, this court disposes of this motion as follows:
A.
MOTION to INSPECT, DISMISS and/or REDUCE CPL ARTICLE 190
The court grants the defendant's motion to the limited extent that the court has conducted, with the consent of the People, an in camera inspection of the stenographic transcription of the grand jury proceedings. Upon such review, the court finds no basis upon which to grant defendant's application to dismiss or reduce the indictment.
The defendant, who bears the burden of refuting with substantial evidence the presumption of regularity which attaches to official court proceedings (People v Pichardo, 168 A.D.2d 577 2d Dept 1990]), has offered no sworn factual allegations, in support of his argument that the grand jury proceedings were defective. The minutes reveal 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 Calbud, 49 N.Y.2d 389 [1980]; People v Valles, 62 N.Y.2d 36 [1984]; People v Burch, 108 A.D.3d 679 [2d Dept2013]).
The evidence presented, if accepted as true, is legally sufficient to establish every element of each 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 N.Y.3d 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 A.D.3d 1138, 1139 [2d Dept 2016]). "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 Jessup, 90 A.D.3d 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 N.Y.2d 523, 526 [1998]).
While defendant challenges the sufficiency of the information, as the People point out he was not charged by information and, thus, his arguments in that regard are without merit.
The indictment contains a plain and concise factual statement in each count 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 crimes, and alleges that the defendant committed the acts which constitute the crimes at a specified place during a specified time period and, therefore, is sufficient on its face (People v Cohen, 52 N.Y.2d 584 [1981]; People v Iannone, 45 N.Y.2d 589 [1978]).
Based upon the in camera review, since this court does not find release of the grand jury minutes or any portion thereof necessary to assist it in making any determinations and as the defendant has not set forth a compelling or particularized need for the production of the grand jury minutes, defendant's application for a copy of the grand jury minutes is denied (People v Jang, 17 A.D.3d 693 [2d Dept 2005]; CPL 190.25[4][a]).
B.
MOTION to PRECLUDE UNNOTICED & NOTICED STATEMENTS CPL710
The branch of the motion which is to preclude the People from introducing statements at trial that were not noticed pursuant to CPL 710.30 is denied as premature. Defendant's request for a Huntley hearing is denied as academic since, as noted in the consent discovery order, the People are not aware of any statement made by defendant to the police. The People acknowledge the statutory requirements of CPL 710.30.
C.
MOTION to SUPPRESS PHYSICAL EVIDENCE DERIVED FROM THE EAVESDROPPING WARRANTCS)
Defendant's motion to suppress any evidence obtained pursuant to an eavesdropping warrant on the basis that the People failed to turn over the warrant and supporting application to him pursuant to CPL 700.70 is denied as the People have shown that they complied with CPL 700.70.
Defendant's argument in his reply papers that his motion to suppress the eavesdropping warrants for failure to comply with CPL 700.70 should include the eavesdropping warrants used in the Port Chester investigation is without merit, as the People advise that defendant was not a target of those warrants and was not a party to the intercepted communications (see CPL 710.20, 710.10[5]). Defendant has no standing to be heard on matters involving GPS coordinates or telephone records of a third-party's device in which he has no reasonable expectation of privacy (see People v Kramer, 92 N.Y.2d 529, 538-540 [1998]; People v Anderson, 149 A.D.3d 1407, 1408-1409 [3d Dept 2017] /v. denied 30NY3d947[2017]).
D.
MOTION TO RETAIN INVESTIGATIVE EXPERT COUNTY LAW § 722-C
Defendant's request pursuant to County Law § 722-c to obtain the services of an investigative expert is denied as defendant failed to show that such services were necessary to his defense (see County Law § 722-c; People v Walker, 167 A.D.3d 1502, 1503 [4th Dept 2018] Iv. denied 33 N.Y.3d 955 [2019]); People v Clarke, 110 A.D.3d 1341, 1342 [3d Dept 2013] Iv. denied 22 N.Y.3d 1197 [2014]).
E.
MOTION for DISCOVERY, DISCLOSURE and INSPECTION CPL ARTICLE 240
The parties have entered into a stipulation by way of a Consent Discovery Order consenting to the enumerated discovery in this case. Defendant's motion for discovery is granted to the extent provided for in Criminal Procedure Law Article 240. If there any further items discoverable pursuant to Criminal Procedure Law Article 240 which have not been provided to defendant pursuant to the Consent Discovery Order, they are to be provided forthwith. With respect to the eavesdropping discovery, the People have demonstrated that they complied with the statute (see CPL 700.70).
As to the defendant's demand for Brady 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 U.S. 83 [1963]; Giglio v United States, 405 U.S. 150 [1972]). 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 N.Y.2d 1 [1993]; Giglio v United States, 405 U.S. 150 [1972]; Brady v Maryland, 312> US 83 [1963]; People v Wooley, 200 A.D.2d 644 [2d Dept 1994]). If 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 such must be disclosed to the defendant.
Except to the extent that the defendant's application has been specifically granted herein, it is otherwise denied as seeking material or information beyond the scope of discovery (see People v Colavito, 87 N.Y.2d 423 [1996]; Matter of Brown v Grosso, 285 A.D.2d 642 [2d Dept 2001]; Matter of Brown v Appelman, 241 A.D.2d 279 [2d Dept 1998]; Matter of Catterson v Jones, 229 A.D.2d 435 [2d Dept 1996]; Matter of Catterson v Rohl, 202 A.D.2d 420 [2d Dept 1994]).
F.
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, and prior uncharged criminal, vicious or immoral conduct. On the People's consent, the court orders a pretrial hearing pursuant to People v Sandoval (34 N.Y.2d 371 [1974]). At the hearing, the People shall be required to notify the defendant of all specific instances of his criminal, prior uncharged criminal, vicious or immoral conduct of which they have knowledge and which they intend to use in an attempt to impeach the defendant's credibility if he elects to testify at trial (CPL 240.43). 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 his ability to testify as a witness on his own behalf (see People v Matthews, 68 N.Y.2d 118 [1986]; People v Malphurs, 111 A.D.2d 266 [2d Dept 1985]).
Defendant's application for a hearing, pursuant to People v Ventimiglia (52 N.Y.2d 350 [1981]) is denied since the People have not indicated an intention to use evidence of any prior bad act or uncharged crimes of the defendant during its case in chief (see People v Molineaux, 168 N.Y.2d 264 [1901]). If the People move to introduce such evidence, the defendant may renew this aspect of his motion.
G.
MOTION FOR a SEVERANCE and FOR a SEPARATE TRIAL
The defendant was properly joined in the indictment (CPL 200.40[l][d]). While the court may, in its discretion and for good cause shown, order that defendant be tried separately, defendant failed to demonstrate good cause for severance. Where the proof against all defendants is supplied by the same evidence, "only the most cogent reasons warrant a severance" (People v Bornholdt, 33 N.Y.2d 75, 87 [1973]; People v Kevin Watts, 159 A.D.2d 740 [2d Dept 1990]). "[A] strong public policy favors joinder, because it expedites the judicial process, reduces court congestion, and avoids the necessity of recalling witnesses..." (People v Mahboubian, 74 N.Y.2d 174, 183 [1989]). Defendant's motion to sever on the ground that there would potentially be prejudice arising from a Sandoval ruling is denied as premature, with leave to renew after a Sandoval ruling, and upon a showing that a joint trial will result in unfair prejudice to him and substantially impair his defense.
H.
MOTION to CONDUCT PRE-TRIAL HEARINGS TWENTY DAYS in ADVANCE of TRIAL
The defendant's motion to schedule pre-trial hearings twenty days prior to trial is denied. The hearings will be scheduled at a time that is convenient to the Court, upon due consideration of all of its other cases and obligations.
I.
MOTION for TIME to FILE FUTURE MOTIONS
This branch of the motion is denied. Any future motion must be brought by way of order to show cause setting forth reasons as to why said motion was not brought in conformity with CPL 255.20.
J.
MOTION for an AUDIBILITY HEARING
Inasmuch as codefendant(s) on this indictment have moved for an audibility hearing, and the People consented to same, the court orders a pretrial hearing to determine whether the relevant communications recorded pursuant to the eavesdropping warrants are so inaudible and indistinct that a jury must speculate as to their contents (see People v Harrell, 187 A.D.2d 453 [2d Dept 1992]; People v Morgan, 175 A.D.2d 930, 932 [2d Dept 1991]). Whether a recording should be admitted into evidence is within the discretion of the trial court (People v Morgan, 175 A.D.2d 930, 932 [2d Dept 1991]). This determination is to be made after weighing the probative value of the evidence against the potential for prejudice (People v Harrell, 187 A.D.2d 453 [2d Dept 1992]).