Opinion
Indictment No. 19-305
10-11-2019
THE PEOPLE OF THE STATE OF NEW YORK v. MICHAEL RHODES, Defendant.
Unpublished Opinion
DECISION & ORDER
FUFIDIO, J.
Defendant, MICHAEL RHODES, having been indicted on or about June 21, 2019 for two counts of criminal sale of a controlled substance in the third degree (Penal Law § 220.39[ 1 ]) and two counts of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[ 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 and the Consent Discovery Order entered in this case, this Court disposes of this motion as follows:
A. MOTION TO DISMISS ON SPEEDY TRIAL GROUNDS
Defendant's motion to dismiss the instant indictment on both statutory and Constitutional speedy trial grounds are decided as follows:
I. Statutory Speedy Trial. CPL 30.30
On November 29, 2018, the People filed a felony complaint alleging charges that stemmed from a series of drug sales that the Defendant made to an undercover police officer on June 15 and 17, 2017, roughly a year and a half after the alleged sales took place. With the filing of the felony complaint, the clock by which the People must declare readiness for trial began ticking and the Defendant's speedy trial rights began to accrue (CPL 1.20[16], 30.20[ 1 ]). However, the fact that there was a 17 month delay between the alleged sales and the start of the criminal action does not create a grounds for dismissal under CPL 30.20, since there had been no previous criminal action for these acts brought against the Defendant (People v Johnson, 234 A.D.2d 390 [2nd Dept 1996]). The People have a wide berth in deciding when to bring charges against a defendant, but they are necessarily restricted by the statute of limitations pertaining to the individual charges, however, under special circumstances, a shorter time period than the statute of limitations may impair a defendant's right to a fair trial which is an issue discussed below (People v Fuller, 57 N.Y.2d 152 [1982]; CPL 30.10).
Along the same lines, the obligation created by CPL 30.30 is that People must declare their readiness for trial on a felony charge within six months (180 days) of the commencement of the case, which in this case was November 29, 2018 (CPL 30.30[l][a]). Certain time periods are excluded from that six month calculation such as time when matters are, "under consideration by the court" (CPL 30.30 [4]), or time that has elapsed due to a "continuance granted by the court at the request of, or with the consent of, the defendant or his counsel" (CPL 30.30 [4] [b]; People v Waldron, 6 N.Y.3d 463 [2006]).
The People give themselves a generous "approximate" 144 day cushion of excluded time. They include in their calculations, but do not account for the time period between arraignment on the felony complaint and January 24, 2019 which they count as 54 days and they also fail to account for the time between May 8, 2019, which was the date that the Defendant requested for a felony hearing on April 22, 2019 and July 17, 2019 when the Defendant was arraigned on the instant indictment and the People declared readiness on the charges. The People bear the burden of accounting for that time and have not done so (People v Santos, 68 N.Y.2d 859 [1986]). There are 228 days between November 30, 2018 and July 17, 2018. The People need to show that at least 48 of them can be charged to the Defendant. The People have shown that 103 of them, between January 25, 2019 and May 8, 2019 are excluded due to the Defendant's request. They have failed to account for the time between November 30, 2018 and January 24, 2019 which is 55 days and the time between May 9, 2019 and July 17, 2019 which is 69 days. The People have used up 124 of their allotted 180 days by which they have to declare readiness, but they have not exceeded the 180 day time period. Accordingly, the People have met their burden for purposes of this CPL 30.30 motion.
II. Constitutional Speedy Trial
Defendant has also moved to have his case dismissed because the People allowed approximately 17 months to pass between the alleged crime and the filing of an indictment. This type of pre-indictment delay is framed as a due process violation and thus generally requires a showing of actual prejudice before relief may be granted. Additionally, in cases where there has been a lengthy delay, the People must show good cause for such a delay (People v Singer, 44 N.Y.2d 241 [1975]). Acknowledging that there is no specific length of time after which a dismissal is required, the Court of Appeals has developed a 5 part test to determine whether or not a defendant's due process rights were violated by the People's inaction (People v Taranovich, 37 N.Y.2d 442 [1975], The factors to be considered are 1. Length of delay, 2. Reasons for the delay, 3. Nature of the underlying charges, 4. Extent of pretrial incarceration and 5. Prejudice to the defendant.
Applying these factors to the instant case, it appears as though the People have met their burden. While the People have a wide berth in deciding when to bring charges against a defendant, they are necessarily restricted by the statute of limitations pertaining to the individual charges, however, under special circumstances, a shorter time period may impair a defendant's right to a fair trial (People v Fuller, 57 N.Y.2d 152 [1982]; CPL 30.10). In this case, the People are well within the statute of limitations and while any delay has the potential to cause prejudice to the defendant appellate courts have held that a four and a half year delay in bringing a criminal possession of a weapon in the third degree charge (People v Johnson, 134 A.D.3d 1388 [4th Dept 2015]) and a three and a half year delay in bringing a burglary in the second degree charge (People v Velez, 78 A.D.3d 867 [2nd Dept 2010]) were not unreasonably long, indeed, the Court of Appeals has even found no prejudice in a 15 year delay in bringing murder charges against a defendant (People v Decker, 13 N.Y.3d 12 [2009]).
In this case, a seventeen month delay while the Defendant is at liberty is not unreasonable given that this particular set of sales was part of a larger drug interdiction operation in Yonkers, New York that involved multiple undercover officers, multiple police agencies and multiple targets over a long period of time. It is not unreasonable for such a dely to allow for the gathering of intelligence and evidence and so that the identities of the undercover police officers to remain undercover in order for them to successfully and safely execute the operation.
Under the third factor, the sale of controlled substances is an inherently serious crime punishable by a State Prison sentence.
Finally, and most importantly, the Defendant has made no concrete showing of prejudice by being charged approximately seventeen months after the alleged incident, he merely speculates that there may be some prejudice as a result.
Weighing all of the factors together, the Court does not find that the Defendant was denied due process (People v Romero, 173 A.D.2d 654 [2nd Dept. 1991]). Should the Defendant discover at some point in preparation for trial that he has suffered an actual prejudice as a result of this delay, he is free to attempt to reopen this portion of his motion. Until that day, however, this branch of the defendant's motion is denied as well.
B. MOTION FOR FURTHER BILL OF PARTICULARS
The Defendant's motion for a further bill of particulars is denied. The Defendant was given a bill of particulars as part of the Consent Discovery that was supposed to have been returned to the People by the defendant and filed with the Court.. The Court finds that this bill of particulars conforms to the requirement of CPL 200.95 and that the information set forth in the bill of particulars in conjunction with the information set forth in the indictment and other court filings is sufficient to give the Defendant adequate notice of the charges against him so as to be able to formulate a defense to the allegations (People v lannone, 45 N.Y.2d 589 [1978], CPL 200.95).
C & I. 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.
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 U.S. 83 [1963]; Giglio v United States, 405 U.S. 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.
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]).
D. MOTION TO INSPECT, DISMISS AND/OR REDUCE
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 minutes reveal a quorum of the grand jurors was present during the presentation of evidence, 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.
The grand jury was properly instructed (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 Dept 2013]). 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]).
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]).
E. MOTION TO STRIKE IDENTIFICATION NOTICES AND PRECLUDE STATEMENTS NOT NOTICED
The People have not expressed any indication that they plan on using any identifications made of the Defendant of the kind that they are required to notice to the defendant other than the one that they have noticed to him already, but should they intend to, they will have to show good cause as to why they were not noticed within fifteen days of arraignment (CPL 710.30) and if that showing is made, then the Court will conduct the appropriate hearings.
F. MOTION TO SUPPRESS IDENTIFICATION TESTIMONY CPL ARTICLE 710
This motion is granted to the extent that a hearing shall be held to consider whether or not the noticed identifications were unduly suggestive (United States v Wade, 388US218 [1967]). There were two noticed identifications, but only one discussed in the People's Opposition. The Court has insufficient evidence before it to conclude whether or not the noticed identifications pertaining to "the buyer" or Detective Robinson were in fact "confrimatory" as the People contend. With respect to the identifications the court shall determine whether the identification was so improperly suggestive as to taint any in-court identification. In the 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.
G. MOTION FOR A DARDEN HEARING
The Defendant's motion for a hearing to "determine the credibility of the undercover officer" is denied. A Darden hearing is not applicable to cases, such as this, where an undercover officer supplied the information resulting in the Defendant's arrest. In any event, even if an informant was used in this case, his or her disclosure is likewise denied. The disclosure of informants is only required when the question of a defendant's guilt or innocence turns on an informants testimony (People v Goggins, 34 N.Y.2d 163 [1974]). The Defendant has not made any showing that an informant was used in this case, much less the requisite showing that an informant's testimony would have any bearing on his guilt or innocence (id.). Moreover, disclosure would not be required even if an informant had been instrumental in making the introduction between the defendant and law enforcement (People v Vega, 23 A.D.3d 504 [2nd Dept. 2005]).
H. MOTION FOR SANDOVAL AND VENTIMIGLIA HEARINGS
The 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, prior uncharged criminal act, and vicious or immoral conduct (see, People v Sandoval, 34 N.Y.2d 371 [1974]). The People have consented to, and it is now ordered that immediately prior to trial the court will conduct a Sandoval hearing.
At the hearing, the People are required to notify the Defendant of all specific instances of his criminal, prior uncharged criminal acts and 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 then 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 him should he decide testify as a witness on his own behalf and thereby prevent him from exercising this right (see, People v Matthews, 68 N.Y.2d 118 [1986]; People v Malphurs, 111 A.D.2d 266 [2d Dept 1985]).
The Defendant's application for a Ventimiglia hearing is denied as premature, because the People have not indicated an intention to use any evidence of prior bad act or uncharged crimes of the Defendant in its case in chief (see, People v Molineaux, 168 N.Y.2d 264 [1901]; People v Ventimiglia, 52 N.Y.2d 350 [1981]). The People have stated that if they do intend to use any Molineaux evidence that they will inform the defense and the court of their intention and at that point the Defendant may renew 'this aspect of his motion.
J. MOTION RESERVING THE RIGHT TO FILE ADDITIONAL MOTIONS
Defendant's motion reserving the right to file additional motions is denied. Should the Defendant file any other motions that were not raised in his Omnibus motion, then they will need to be in compliance with CPL 255.20(2).
The foregoing constitutes the opinion, decision and order of this Court.