Opinion
Indictment No. 20-0570
03-30-2021
THE PEOPLE OF THE STATE OF NEW YORK v. PRINCE ROGERS, Defendant.
HON. MIRIAM E. ROCAH District Attorney, Westchester County Harold, Salant, Strassfield & Spielberg Attorney for defendant, Prince Rogers
Unpublished Opinion
HON. MIRIAM E. ROCAH District Attorney, Westchester County
Harold, Salant, Strassfield & Spielberg Attorney for defendant, Prince Rogers
DECISION & ORDER
HONORABLE ANNE E. MINIHAN ACTING JUSTICE
Defendant, Prince Rogers, charged by Westchester County Indictment Number 20-0570 with Robbery in the First Degree (Penal Law § 160.15 [3]), Assault in the Second Degree (Penal Law § 120.05 [2]), Assault in the Second Degree (Penal Law § 120.05 [6]]), Grand Larceny in the Fourth Degree (Penal Law § 155.30[5]), and Criminal Possession of a Weapon in the Third Degree (Penal Law § 265.02 [1]) has filed an omnibus motion consisting 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.
By special information defendant is accused of having previously been convicted of a crime, which is an element of a charged crime (Penal Law § 265.02[ 1 ]; CPL 200.60).
I. MOTION to INSPECT and DISMISS and/or REDUCE CPL ARTICLE 190
Defendant moves pursuant to CPL 210.20(1) to dismiss the indictment, or counts thereof, 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. On consent of the People, the court has reviewed the minutes of the grand jury proceeding.
Here, the evidence presented to the grand jury, if accepted as true, would be legally sufficient to establish defendant's guilt of the charges (CPL 210.30[2]). Accordingly, defendant's motion to dismiss the indictment is denied. Pursuant to CPL 190.65(1), an indictment must be supported by legally sufficient evidence which establishes that the defendant committed the offenses charged. "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[l]; 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]).
Defendant's claim that the grand jury proceeding was defective within the meaning of CPL 210.35 is without merit. A review of the minutes reveals, inter alia, that 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 of the evidence to vote the matter (see People v Collier, 72 N.Y.2d 298 [1988]; 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]).
Defendant's challenge to the facial sufficiency of the indictment is 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 lannone, 45 N.Y.2d 589 [1978]).
The People acknowledge that they will comply with their obligations concerning grand jury testimony pursuant to CPL 245.20(1)(b). The court does not find it necessary to order release of those portions of the grand jury minutes as constitute colloquies or instructions.
Insofar as defendant's motion seeks to dismiss the felony complaint in the interest of justice pursuant to CPL 170.40(1) based on the alleged failure of the People to produce a supporting deposition, that branch of the motion is denied. Defendant's challenge to the felony complaint is academic since the felony complaint was superseded by an indictment (see People v Petion, 186 A.D.3d 1410, 1411 [2d Dept 2020]; People v Brown, 170 A.D.3d 878, 880 [2d Dept 2019]).
II. MOTION to PRECLUDE UNNOTICED AND NOTICED IDENTIFICATION TESTIMONY CPL 710
Insofar as defendant seeks to preclude unnoticed identification testimony, that branch of the motion is denied as premature. The People acknowledge the notice requirements of CPL 710.30.
The People served defendant with CPL 710.30(1)(b) notice of two alleged identifications of defendant, each from a single photo. Defendant's motion to suppress noticed identification testimony is granted to the limited extent of ordering a pre-trial Wade hearing (see United States v Wade, 388 U.S. 218 [1967]). At the hearing, the People bear the initial burden of establishing the reasonableness of the police conduct and the lack of any undue suggestiveness (see People v Chipp, 75 N.Y.2d 327, 335 [1990] cert, denied498 U.S. 833 [1990]; People v Berrios, 28 N.Y.2d 361 [1971]). Once that burden is met, defendant bears the ultimate burden of proving that the procedure was unduly suggestive. Where suggestiveness is shown, the People must show the existence of an independent source by clear and convincing evidence. The hearing will address the People's claim that the identifying witnesses had a sufficient prior familiarity with defendant as to render them impervious to police suggestion (see People v Rodriguez, 79 N.Y.2d 445 [1992]).
III. MOTION to PRECLUDE UNNOTICED AND NOTICED STATEMENT TESTIMONY CPL 710
Insofar as defendant moves to suppress unnoticed statements, that branch of the motion is denied as premature. The People acknowledge the notice requirements of CPL 710.30.
Defendant's motion to suppress noticed statements is likewise denied as premature. The People indicate that they have not served notice of any statements and that they do not intend to introduce any statements of defendant because, upon information and belief, none exist.
IV.
MOTION to SUPPRESS PHYSICAL EVIDENCE
This branch of defendant's motion is granted solely to the extent of ordering a pretrial Mapp hearing to determine the propriety of any search resulting in the seizure of property not obtained pursuant to a search warrant (Mapp v Ohio, 367 U.S. 643 [1961]). The hearing will also address whether any evidence was obtained in violation of defendant's Fourth Amendment rights (see Dunaway v New York, 442 U.S. 200 [1979]).
V.
MOTION to UNSEAL &to CONTROVERT SEARCH WARRANTS
With respect to defendant's motion to unseal the search warrants, the People advise that the subject papers have already been turned over to defendant as part of discovery.
To the extent that defendant has standing to contest any property seized pursuant to the search warrants, defendant's challenge to the sufficiency of the search warrants fails. The results of a search conducted pursuant to a facially sufficient search warrant are not subject to a suppression hearing (People v Arnau, 58 N.Y.2d 27 [1982]). Upon review of the four comers of the search warrant affidavits, the warrants were adequately supported by probable cause (see People v Keves, 291 A.D.2d 571 [2d Dept 2002]; see generally People v Badilla, 130 A.D.3d 744 [2d Dept 2015]; People v Elysee, 49 A.D.3d 33 [2d Dept 2007]). Thus, that branch of defendant's motion which seeks to controvert the warrants is denied.
Insofar as defendant moves for a Darden hearing, the People advise that no confidential informant(s) were utilized in this case; thus, this branch of the motion is denied (see People v Darden, 34 N.Y.2d 177 [1974]).
VI.
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, prior uncharged criminal, vicious or immoral conduct. On the People's consent, the court orders a pretrial Sandoval hearing (see People v Sandoval, 34 N.Y.2d 371 [1974]). At said hearing, the People shall notify the defendant, in compliance with CPL Article 245, 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, and in any event not less than J 5 days prior to the first scheduled trial date. 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]).
On the People's consent, if the People determine that they will seek to introduce evidence at trial of any prior uncharged misconduct and criminal acts of the defendant, including acts sought to be used in their case in chief, they shall so notify the court and defense counsel, in compliance with CPL Article 245, and in any event not less than 15 days prior to the first scheduled trial date, and a Ventimiglia/Molineux hearing (see People v Ventimiglia, 52 N.Y.2d 350 [1981]; People v Molineux, 168 NY 264 [1901]) shall be held immediately prior to trial to determine whether or not any evidence of uncharged crimes may be used by the People, including to prove their case in chief. The People are urged to make an appropriate decision in this regard sufficiently in advance of trial to allow any Ventimiglia!Molineux hearing to be consolidated and held with the other hearings herein.
VII. MOTION for DISCOVERY, DISCLOSURE and INSPECTION CPL Article 245
To whatever extent material that is discoverable under Criminal Procedure Law Article 245 has not already been provided to the defense by the People, the defendant's motion is granted and such discovery, including both Brady material and Rosario material, shall be provided forthwith. Leave is granted for either party to seek a protective order (CPL Article 245). If the defense has a particularized reason to believe that there remains outstanding discovery with which counsel has not been provided, counsel is directed to contact the assigned Assistant District Attorney upon receipt of this order. If the issue remains unresolved within two days of receipt of this order, counsel for the defendant shall contact the court to request an immediate compliance conference.
The People acknowledge their continuing duty to disclose exculpatory material (Brady v Maryland, 373 U.S. 83 [1963]; see Giglio v United States, 405 U.S. 150 [1971]). If the People are or become aware of any such material which is arguably subject to disclosure under Brady and its progeny and Criminal Procedure Law Article 245 which they are unwilling to consent to disclose, they are directed to bring it to the immediate attention of the court and to submit it for the court's in camera inspection and determination as to whether it constitutes Brady material discoverable by the defendant.
If the People have fulfilled their discovery obligations but have not yet filed a Certificate of Compliance, they are directed to do so forthwith and they are reminded of their continuing obligation to remain in compliance with the discovery mandates set forth in CPL Article 245 and to file supplemental Certificates of Compliance as the need arises.
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, 373 U.S. 83 [1963]; People v Wooley, 200 A.D.2d 644 [2d Dept 1994]).
If the People have yet to provide defendant with a Bill of Particulars, they are hereby directed to provide same to defendant within three days of receipt of this order (see CPL 200.95[3).
VIII.
LEAVE TO MAKE ADDITIONAL MOTIONS
To the extent that defendant's motion seeks leave to make additional motions, that branch of the motion is denied. Defendant must demonstrate good cause for any further pre-trial motion for omnibus relief, in accordance with CPL 255.20(3).
The foregoing constitutes the decision and order of this court.