Opinion
Indictment No. 21-0448
01-20-2022
THE PEOPLE OF THE STATE OF NEW YORK v. RASHON JEFFERS, Defendant.
HON. MIRIAM E. ROCAH Westchester County District Attorney Assistant District Attorney Graham R. Chapman THE LEGAL AID SOCIETY OF WESTCHESTER COUNTY Attorney for Defendant Rashon Jeffers. Andrew L. Restivo, Esq.
Unpublished Opinion
HON. MIRIAM E. ROCAH Westchester County District Attorney Assistant District Attorney Graham R. Chapman
THE LEGAL AID SOCIETY OF WESTCHESTER COUNTY Attorney for Defendant Rashon Jeffers. Andrew L. Restivo, Esq.
DECISION & ORDER
ROBERT J. PRISCO, J.
Defendant RASHON JEFFERS is charged by Indictment Number 21-0448 with one count of Assault in the Second Degree pursuant to Penal Law [PL] § 120.05 (2) [Count One], two counts of Criminal Possession of a Weapon in the Third Degree pursuant to PL § 265.02 (1) [Counts Two and Three] and one count of Attempted Assault in the Second Degree pursuant to PL §§110 and 120.05 (2). The charges pertain to Defendant's alleged striking of another individual with a tire wrench and the serious physical injury allegedly sustained by that individual as a result thereof and Defendant's further alleged intent to cause physical injury to that same individual with a fire extinguisher. The above offenses are alleged to have occurred at 17 South 13th Avenue in the City of Mount Vernon, at approximately 7:24 p.m. on March 28, 2021.
On September 20, 2021, Defendant was arraigned by the Honorable David S. Zuckerman on the charges contained in Indictment Number 21-0448. Attached to the indictment is an Information accusing Defendant of having been previously convicted of Attempted Criminal Possession of a Controlled Substance in the Fourth Degree on or about October 23, 2008, in the Westchester County Court, five (5) CPL § 710.30 (1) (b) Notices signifying the People's intent to offer testimony of an observation of the defendant either at the time or place of the commission of the offenses or upon some other relevant occasion by a witness or witnesses who have previously identified him as such, and the People's Demand for a Notice of Alibi pursuant to CPL § 250.20.
On December 20, 2021, Defendant filed a Notice of Pre-Trial Motions pursuant to CPL Article 255 (hereinafter "Notice of Motion"), an Affirmation in Support and a Memorandum of Law, seeking various forms of judicial intervention and relief.
On December 30, 2021, the People filed an Affirmation in Opposition, a Memorandum of Law and an unredacted certified copy of the stenographic transcript of the August 25, 2021 Grand Jury proceeding, along with copies of the Grand Jury Exhibits.
After consideration of the above referenced submissions and the unredacted certified stenographic transcript of the August 25, 2021 Grand Jury proceeding, the Court decides Defendant's Motion as follows:
1. MOTION FOR DISCOVERY.
Pursuant to CPL Article 245, Defendant moves for discovery and provides a list of "specific items of discovery" that "the prosecution is required to provide" (see Point A, Pages 2-4, of Defendant's Notice of Motion and Point A, Pages 1-4, of Defendant's Memorandum of Law). Specifically, Defendant contends that "[t]he information sought is reasonable and both material and necessary to adequately prepare and conduct a defense" (see Point A, Page 1, of Defendant's Memorandum of Law).
Defendant's repeated references in his Memorandum of Law to various sections of CPL Article 240 in support of his motion for discovery is interpreted as being brought pursuant to CPL Article 245, which replaced Article 240, effective January 1, 2020.
In response, the People assert that they "have [already] provided defendant [with] substantial discovery" and oppose discovery "to the extent it exceeds CPL Article 245" (see Points I and II, Page 1, of the People's Memorandum of Law). The People further assert that "[a]ny motion by defendant for discovery within the parameters of CPL Article 245 is moot because, to the extent such material exists and is in [the] possession [or] control of the People, it has or will be provided to defendant" (see Points I and II, Pages 1-2, of the People's Memorandum of Law).
The People contend that "[d]iscovery was provided on or about June 9, 2021, July 13, 2021, August 12, 2021, November 19,2021, December 27,2021 and December 28,2021" (seePage 4, Footnote 6, of the People's Affirmation in Opposition).
As of the present date, the Court has not received a Certificate of Compliance pursuant to CPL § 245.50 (1) stating that, after exercising due diligence and making reasonable inquiries to ascertain the existence of material and information subject to discovery, the People have disclosed and made available all known material and information subject to discovery. To the extent that such material and information has not yet been disclosed and made available to the defendant, the People are directed to do so immediately as their initial discovery obligations should have been performed as soon as practicable but not later than thirty-five (35) calendar days after the defendant's arraignment on the indictment (see CPL § 245.10 (1) (a) (ii)). Moreover, absent a finding of special circumstances by this Court, the People will not be deemed ready for trial pursuant to CPL § 30.30 until a proper Certificate of Compliance has been served and filed (see CPL § 245.50 (3)).
2. MOTION FOR BRADY MATERIAL.
Citing Brady v Maryland, 373 U.S. 83 (1963), Defendant moves for an order directing the People to provide "all favorable evidence which tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment, and any information affecting the credibility of [a] potential prosecution witness" (see Point B, Page 4, of Defendant's Notice of Motion and Point B, Pages 4-5 of Defendant's Memorandum of Law).
In response, the People acknowledge "their continuing obligation to disclose exculpatory evidence that is within their possession pursuant to Brady v Maryland (373 U.S. 83 [1963]) and People v Fein (-18 N.Y.2d 162 [1966])," state that "[t]o the extent such material becomes known and is in possession of the People, it will be provided to the defendant... [and represent that they] have or will comply with their obligations under CPL 245.20 (1) (k), (1), and (p)" (see Points I and II, Page 2, of the People's Memorandum of Law).
The People also acknowledge their obligation "to disclose the terms of any deal or agreement between the government and any prosecution witness under the guidelines set forth in Giglio v United States (405 U.S. 150 [1972])" (see Page 2, Footnote 7, of the People's Memorandum of Law).
The People are respectfully reminded to remain cognizant of their discovery obligations not only as required by Brady, Giglio, People v Geaslen, 54 N.Y.2d 510 [ 1981 ], and their respective progeny, but also as mandated by CPL Article 245. Specifically, CPL § 245.20 (1) (k) requires that the prosecutor disclose "[a]ll evidence and information, including that which is known to police or other law enforcement agencies acting on the government's behalf in this case, that tends to: (i) negate the defendant's guilt as to a charged offense; (ii) reduce the degree of or mitigate the defendant's culpability as to a charged offense; (iii) support a potential defense to a charged offense; (iv) impeach the credibility of a testifying prosecution witness; (v) undermine evidence of the defendant's identity as a perpetrator of a charged offense; (vi) provide a basis for a motion to suppress evidence; or (vii) mitigate punishment" and such disclosure must occur expeditiously upon its receipt, "whether or not such information is recorded in tangible form and irrespective of whether the prosecutor credits the information."
Pursuant to CPL § 245.20 (1) (1), the People must also disclose "a summary of all promises, rewards and inducements made to, or in favor of, persons who may be called as witnesses, as well as requests for consideration by persons who may be called as witnesses and copies of all documents relevant to a promise, reward or inducement."
Because the People have not yet served and filed a Discovery Disclosure Index, the Court is presently unaware of the material and information that has been disclosed to Defendant pursuant to the above obligations. However, to the extent that such has not been disclosed, should the People ascertain the existence of Brady, Geaslen, or Giglio material, or of any of the materials and information itemized in CPL § 245.20 (1) (k) and (1), through their mandated diligent, good faith effort to do so or otherwise, they are directed to expeditiously disclose the same upon its receipt.
3. MOTION FOR PRECLUSION OF DEFENDANT'S PRIOR CRIMES OR BAD ACTS; ASOCIATED SANDOVAL AND VENTIMIGLIA HEARINGS.
Relying on People v Sandoval, 34 N.Y.2d 371 [1974], and People v. Ventimiglia, 52 N.Y.2d 350 [1981], Defendant moves for a "pre-trial hearing to determine the admissibility at trial for any purpose of any and all alleged criminal convictions and/or criminal, vicious or immoral acts of defendant" and requests that the People notify him of "all specific instances of defendant's alleged prior uncharged criminal, vicious or immoral conduct of which the prosecution has knowledge, and which the District Attorney intends to use at trial" (see Point C, Pages 4-5, of Defendant's Notice of Motion and Point C, Pages 5-6, of Defendant's Memorandum of Law).
In response, the People acknowledge their Sandoval and Ventimiglia obligations and consent to hearings on same if such disclosure is made (see Point III, Page 3, of the People's Memorandum of Law). The People also indicate that should they "seek to introduce defendant's prior bad acts on their direct case, the People will inform defense counsel and the Court and request a hearing before introducing such Molineux evidence", (see Point III, Page 3, of the People's Memorandum of Law).
CPL § 245.20 (3) (a) provides, in substance and pertinent part, that "[t]he prosecution shall disclose to the defendant a list of all misconduct and criminal acts of the defendant not charged in the indictment, which the prosecution intends to use at trial for purposes of impeaching the credibility of the defendant." To the extent that the People seek to use any of Defendant's prior acts of misconduct or criminality on their direct case as substantive proof of any material issue in the case, CPL § 245.20 (3) (b) likewise obligates "[t]he prosecution [to] disclose to the defendant a list of all misconduct and criminal acts of the defendant not charged in the indictment, which the prosecution intends to use at trial [for such purpose]." Lastly, CPL § 245.20 (3) further requires that "the prosecution shall designate whether it intends to use each listed act for impeachment and/or as substantive proof."
As the People have concededly not yet disclosed to the defendant a list of his acts of misconduct and criminality which the prosecution intends to use at trial for purposes of impeaching his credibility or as substantive proof of any material issue in the case, or designated their intended use thereof, this Court will not order the requested Sandoval and Ventimiglia hearings at the present time. Should the People seek to use at trial any prior acts of misconduct or criminality of the defendant for CPL § 245.20 (3) (a) or (b) purposes, they are directed to disclose to Defendant a list of all such acts of misconduct and criminality and to designate the intended purpose of each listed act. Pursuant to CPL § 245.10 (1) (b), the People "shall perform [these] supplemental discovery obligations as soon as practicable but not later than fifteen (15) calendar days prior to the first scheduled trial date" (emphasis added). If the People do so, Defendant may renew his application to preclude the People's use of such acts of misconduct or criminality at trial or, in the alternative, request a hearing thereon to determine the admissibility thereof. If the People fail to do so, no use of such acts will be permitted at trial.
4. MOTION FOR INSPECTION OF GRAND JURY MINUTES AND DISMISSAL OR REDUCTION OF THE CHARGES CONTAINED IN INDICTMENT NUMBER 21-0448 DUE TO THE LEGAL INSUFFICIENCY OF THE EVIDENCE PRESENTED AND THE INSTRUCTIONS PROVIDED.
Citing CPL Article 210, Defendant moves "for inspection of the Grand Jury minutes by the Court and the defendant, and subsequent to that inspection, for the dismissal of the indictment or reduction of the counts thereof, on the grounds that the evidence before the Grand Jury was not legally sufficient, and that the Grand Jurors were not properly instructed on the applicable law, and on lesser included offenses" (see Point D, Page 5, of Defendant's Notice of Motion and Point D, Pages 6-11, of Defendant's Memorandum of Law). Defendant further requests that "a transcript of the legal instructions to the Grand Jury should be delivered to counsel for examination so that [a] more precise argument can be made" and as the Court "could not possibly be as familiar with the contours of this case, at this point of the proceeding, as counsel for the accused" (see Point D, Page 11, of Defendant's Memorandum of Law).
In their response, the People consent to an in-camera inspection of the Grand Jury minutes by the Court only and contend that the indictment is supported by legally sufficient evidence (see Point IV, Pages 4-5, of the People's Memorandum of Law), and that "Defendant has failed to meet his high burden of showing the existence of any error in the grand jury proceeding which rendered it defective" (see Point IV, Page 6, of the People's Memorandum of Law).
Initially, regarding Defendant's request for the Grand Jury minutes in their entirety, this Court notes that CPL § 245.20 (1) (b) provides for automatic discovery of "[a]ll transcripts of the testimony of a person who has testified before a grand jury" (emphasis added). Similarly, CPL § 210.30 (3), which addresses motions to inspect grand jury minutes speaks only to the release of "grand jury testimony (emphasis added)." Accordingly, as there exists no statutory authority for the release to Defendant of those portions of the Grand Jury minutes that constitute colloquy or instructions and as the People contend that they have complied with the discovery mandate of CPL § 245.20 (1) (b) by providing the defendant with the transcript of the testimony of the two (2) witnesses who testified before the Grand Jury (see Point IV, Page 4, of the People's Memorandum of Law), the defendant's request for the Grand Jury minutes in their entirety is denied.
The Court has conducted an in-camera review of the entirety of the Grand Jury I proceedings, having examined an unredacted certified copy of the stenographic transcript of the August 25, 2021 presentation.
On August 25, 2021, prior to the commencement of the given sworn testimony, the People specifically inquired of and confirmed with the foreperson that twenty-two (22) grand jurors were present. The record established that the twenty-one (21) grand jurors who deliberated and voted on the charges contained in Indictment Number 21-0448 were present throughout the one-day presentation of the case.
"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.3d269,274-275 [2003], quoting People v Carroll, 93 N.Y.2d 564, 568 [1999]; see People v Bello, 92 N.Y.2d 523, 525 [1998]; People v Jensen, 86 N.Y.2d 248, 251 [1995]; People v Jennings, 69 N.Y.2d 103, 114 [1986]; People v Booker, 164 A.D.3d 819, 820 [2d Dept 2018]; People v Hulsen, 150 A.D.3d 1261, 1262 [2d Dept 2017], Iv. denied 30 N.Y.3d 950 [2017]; People v Flowers, 138 A.D.3d 1138, 1139 [2d Dept 2016]). Legally sufficient evidence is "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 Mills, 1 N.Y.3d at 274; People v Franov, 146 A.D.3d 978, 979 [2d Dept 2017]; People v Wisey, 133 A.D.3d 799, 800 [2d Dept 2015]; People v Ryan 125 A.D.3d 695, 696 [2d Dept 2015], Iv. denied 25 N.Y.3d 1077 [2015]). "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], quoting People v Bello, 92 N.Y.2d at 526; see People v Ryan, 125 A.D.3d at 696; People v Woodson, 105 A.D.3d 782, 783 [2d Dept 2013]). This 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'" (People v Bello, 92 N.Y.2d at 526, quoting People v Deegan, 69 N.Y.2d 976, 979 [1987]; see People v Pino, 162 A.D.3d 910, 911 [2d Dept 2018]).
Here, the evidence presented to the Grand Jury, when viewed in the light most favorable to the People, was legally sufficient to establish and support the charges contained in Indictment Number 21-0448.
A Grand Jury proceeding is "defective," warranting dismissal of the indictment, only where the "proceeding . . . fails to conform to the requirements of CPL Article 190 to such degree that the integrity thereof is impaired and prejudice to the defendant may result" (CPL § 210.35 (5); see People v Arevalo, 172 A.D.3d 891, 892 [2d Dept 2019]; People v Williams, 171 A.D.3d 804, 805 [2d Dept 2019]). Dismissal of an indictment under CPL § 210.35 (5) is an "exceptional remedy" that "should ... be limited to those instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the Grand Jury" (People v Huston, 88 N.Y.2d 400, 409 [1996]; see People v Williams, 171 A.D.3d at 805; People v Burch, 108 A.D.3d 679, 680 [2d Dept 2013], Iv. denied!! N.Y.3d 1087 [2014]; People v Thompson, 81 A.D.3d670,671 [2d Dept 2011], aff'd 22 N.Y.3d 687 [2014]). In the case at bar, the Court finds that no such wrongdoing, conduct or errors occurred.
While a prosecutor is required to instruct the grand jury on the law with respect to matters before it (People v Valles, 62 N.Y.2d 36, 38 [1984]; People v Tunit, 149 A.D.3d 1110, 1110 [2d Dept 2017]; People v Samuels, 12 A.D.3d 695, 698 [2d Dept 2004]; see CPL § 190.25 (6)), "a Grand Jury need not be instructed with the same degree of precision that is required when a petit jury is instructed on the law" (People v Calbud, Inc., 49 N.Y.2d 389, 394 [1980]; see People v Caracciola, 78 N.Y.2d 1021, 1022 [1991]; People v Batashure, 75 N.Y.2d 306, 311 [1990]; People v Goetz, 68 N.Y.2d 96,115 [1986]; People v Valles 62N.Y.2d36,38 [1984]; People v Tunit, 149 A.D.3dat 1110; People v Castaldo, 146 A.D.3d 797, 798 [2d Dept 2017]; People v Burch, 108 A.D.3d at 680; People v Malan-Pomaeyna, 'll A.D.3d 988 [2d Dept 2010]). It is well settled that such instructions are sufficient so long as they provide "enough information to enable [the grand jury] intelligently to decide whether a crime has been committed and to determine whether there exists legally sufficient evidence to establish the material elements of the crime" (People v Calbud, Inc., 49 N.Y.2d at 394-395; see People v Valles 62 N.Y.2d at 38; People v Tunit, 149 A.D.3d at 1110-1111; People v Patterson, 73 A.D.3d 1215, 1215 [2d Dept 2010], Iv. denied 15 N.Y.3d 776 [2010]; People v Malan-Pomaeyna, 72 A.D.3d at 988).
Here, after an in-camera review of the unredacted certified copy of the stenographic transcript of the Grand Jury presentation on August 25, 2021, this Court determines that the Grand Jury proceeding was not defective and that the instructions given during the presentation were legally sufficient and proper.
Accordingly, for the reasons set forth above, Defendant's motion to dismiss or reduce the charges contained within Indictment Number 21-0448 is denied.
5. MOTION TO DISMISS INDICTMENT NUMBER 21-0448 FOR FACIAL INSUFFIENCY.
Citing CPL § 210.25 (1), Defendant moves to dismiss the indictment on the ground that "it does not substantially conform to the requirements stated in [CPL] Section 200.50 (7) (a) in that there is no plain and concise factual statement which asserts facts supporting every element of the offense(s) charged and/or the defendant's commission thereof with sufficient precision to clearly apprise the defendant of the conduct which is the subject of the accusation" (see Point E, Page 5, of Defendant's Notice of Motion and Point E, Page 11,'of Defendant's Memorandum of Law).
In response, the People assert that Defendant's motion should be denied as "each charge in the indictment is facially sufficient" (see Point V, Page 8, of the People's Memorandum of Law).
Regarding the four (4) offenses charged in Indictment Number 2021-0448, each count contains a plain and concise factual statement 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 to clearly apprise him of the conduct which is the subject of the accusation (see CPL § 200.50 (7) (a); People v Grega, 72 N.Y.2d 489, 498 [1988]; People v lannone, 45 N.Y.2d 589, 598 [1978]; People v Nunez-Garcia, 178 A.D.3d 1087, 1088 [2d Dept 2019], Iv. denied 35 N.Y.3d 943 [2020]) and the date on which the conduct is alleged to have occurred (see CPL § 200.50 (6); People v Henry, 183 A.D.3d 607 [2d Dept 2020]); People v Atta, 126 A.D.3d 713, 715 [2d Dept 2015], Iv. denied25 N.Y.3d 1159 [2015]). Accordingly, Defendant's motion to dismiss Indictment Number 21-0448 for facial insufficiency is denied.
6. MOTION TO STRIKE LANGUAGE FROM INDICTMENT NUMBER 21-0448.
Defendant moves to strike the language ".. .and against the peace and dignity of the People of the State of New York" from Indictment Number 21-0448 on the ground that such language is "irrelevant and potentially prejudicial" (see Point F, Page 5, of Defendant's Notice of Motion and Point F, Page 12, of Defendant's Memorandum of Law).
As the phrase "against the peace and dignity of the People of the State of New York" merely identifies the defendant's alleged acts as a public rather than a private wrong, Defendant's motion to strike such language from Indictment Number 21-0448 is denied (see People v Winters, 194 A.D.2d 703, 704 [2d Dept 1993], Iv. denied 82 N.Y.2d 761 [1993]; People v Gill, 164 A.D.2d 867, 867 [2d Dept 1990], Iv. denied 76N.Y.2d 893 [1990]).
7. MOTION TO SUPPRESS IDENTIFICATION TESTIMONY.
Pursuant to CPL § 710.30 (1) (b), the People served five (5) notices upon Defendant regarding their intent to offer trial testimony from a witness or witnesses who allegedly identified him via two (2) video identifications that allegedly occurred on March 29, 2021 at 17 South 13thAvenue in the City of Mount Vernon and in the Mount Vernon Police Department, a video identification that allegedly occurred on June 16, 202'1 at the Mount Vernon City Court, and a video identification that allegedly occurred on August 25, 2021 at the Westchester County Grand Jury. Defendant was also allegedly identified on March 29, 2021 at the Mount Vernon Police Department through a single photograph.
Citing CPL Articles 710 and 60, the Fifth, Sixth and Fourteenth Amendments of the United States Constitution and Article I, Section 12, of the New York State Constitution, Defendant moves to suppress "the pre-trial identifications of Rashon Jeffers" (see Point G, Pages 5-6, of Defendant's Notice of Motion) and "any in-court identification by any person who participated in a noticed suggestive identification procedure (see Point G, Page 12, of Defendant's Memorandum of Law).In the alternative, Defendant moves for a "pre-trial Wade hearing.. .to determine the admissibility of such identifications and to determine if the noticed identifications have tainted any potential identification at a future judicial proceeding" (see Point G, Page 6, of Defendant's Notice of Motion). Finally, Defendant submits that "if it should be discovered that there was an unnoticed police arranged viewing of the defendant, the defense seeks preclusion of such viewing and preclusion of any in-court identification of the defendant by anyone associated with such unnoticed viewing" (see Point G, Page 12, of Defendant's Memorandum of Law).
The Court notes that while Defendant refers to a "motion to strike the identification notices" (see Point G, Page 12, of Defendant's Memorandum of Law) and the People address such in their opposition papers (see Point VI, Pages 9-10, of the People's Memorandum of Law), Defendant does not specifically state the grounds or under what theory the noticed identifications are insufficient.
In response, the People assert that the Defendant's motion on Fifth Amendment grounds should be denied because the four (4) identifications allegedly made from the surveillance video "did not constitute 'identification procedures' within the meaning of CPL 710.30, given the witness's prior familiarity with defendant [and], thus, the People need not have served notice upon the defendant" (see Point VII, Pages 11-12, of the People's Memorandum of Law). The People further assert that the identification of defendant from a single photograph was also confirmatory as "the victim who identified defendant, was fully aware of defendant's identity" and therefore "rendered the victim impervious to suggestion" (see Point VII, Pages 13-14, of the People's Memorandum of Law). Finally, the People aver that the identifications of Defendant did not violate his Sixth Amendment rights because "there is no right to the presence of counsel in investigatory, photographic identifications" and that when "defendant was identified at a preliminary hearing, he was represented by a member of the Legal Aid Society... [who] had the ability to object and cross-examine the victim regarding his in-court identification" (see Point VII, Pages 14-15, of the People's Memorandum of Law).
As there is insufficient information presently before this Court to conclude that "the [identifying] witness knows defendant so well as to be impervious to...suggestion" (People v Rodriguez, 79 N.Y.2d 445,454 [1992]; see People v Richardson, 2021 NY Slip Op. 07287 [2d Dept 2021]; People v Coleman, 73 A.D.3d 1200, 1202 [2d Dept 2010]; People v Morrison, 59 A.D.3d 569 [2d Dept 2009], Iv. denied 12 N.Y.3d 918 [2009]; People v Tomlin, 41 A.D.3d 620 [2d Dept 2007], Iv. denied 10 N.Y.3d 817 [2008]) and because "prior familiarity should not be resolved at trial in the first instance" (People v Rodriguez, 79 N.Y.2d at 452; see People v Carmona, 37 N.Y.3d 1016, 1017-1018 [2021]), Defendant's motion to suppress evidence of the identification of defendant is granted to the extent that a Rodriguez hearing will be held to determine whether the witness' alleged identifications of Defendant from video surveillance and from a single photograph were truly confirmatory in nature. At the conclusion of the Rodriguez hearing, if this Court concludes that the identifications were confirmatory, no further hearing on the issue of identification testimony is needed. However, if this Court does not so conclude, a bifurcated hearing pursuant to United States v Wade, 388 U.S. 218 [1967], will then be held.
To the extent that the People have failed to serve a notice within fifteen (15) days after Defendant's arraignment regarding an identification for which such notice is required pursuant to CPL § 710.30, absent a showing of "good cause" (see CPL § 710.30 (2)), "no evidence of a kind specified in [CPL § 710.30 (1)] may be received against [Defendant] upon trial" (CPL § 710.30 (3); see People v Pacquette, 25 N.Y.3d 575, 579 [2015]).
8. RESERVATION OF RIGHTS TO MAKE ADDITIONAL PRE-TRIAL MOTIONS.
Defendant's request to make additional pre-trial motions (see Page 7 of Defendant's Notice of Motion and Page 3 of Defendant's Affirmation in Support) is granted to the extent that, if sought, he will be required to serve and file an Order to Show Cause detailing the reason(s) why said motions were not brought in conformity with the time provisions and motions practice set forth in CPL § 255.20 (1) and (2), respectively.
However, notwithstanding the provisions of CPL § 255.20 (1) and (2), this Court will "entertain and decide on its merits, at any time before the end of the trial, any appropriate pre-trial motion based upon grounds of which the defendant could not, with due diligence, have been previously aware, or which, for other good cause, could not reasonably have been raised within the period specified in [CPL § 255.20 (1)] or included within the single set of motion papers as required by [CPL § 255.20 (2)]" (CPL § 255.20 (3); see People v Wisdom, 23 N.Y.3d 970, 972 [2014]; People v Marte, 197 A.D.3d 411, 413 [1st Dept 2021]; People v Burke, 174 A.D.3d 915, 915 [2d Dept 2019]; People v Milman, 164 A.D.3d 609, 610 [2d Dept 2018]).
The foregoing constitutes the Decision and Order of this Court.