Opinion
Indictment 19-0882-02
12-23-2019
THE PEOPLE OF THE STATE OF NEW YORK v. SHANELLE STRAKER and HENRY LANTIGUA, Defendant.
HON. ANTHONY A. SCARPINO, Jr. District Attorney, Westchester County, Dr. Martin Luther King, Jr., Attn: A.D.A. Virginia A. Marciano, CLARE J. DEGNAN, Attn: Daniel Harnick, Esq. Tamika A. Coverdale, Esq. Attorneys for defendant, Henry Lantigua
Unpublished Opinion
HON. ANTHONY A. SCARPINO, Jr. District Attorney, Westchester County, Dr. Martin Luther King, Jr., Attn: A.D.A. Virginia A. Marciano, CLARE J. DEGNAN, Attn: Daniel Harnick, Esq. Tamika A. Coverdale, Esq. Attorneys for defendant, Henry Lantigua
DECISION & ORDER
Honorable Anne E. Minihan Acting Supreme Court Justice
Defendant, HENRY LANTIGUA, charged by Westchester County Indictment No. No. 19-0882-02 with Criminally Negligent Homicide (Penal Law § 125.10), and Endangering the Welfare of a Child (Penal Law § 260.10[1]), has filed an omnibus motion consisting of a Notice of Motion, an Affirmation, and a Memorandum of Law. In response thereto, 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 dated October 22, 2019, entered in this case, the court disposes of the motion as follows:
I.
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 he has not been provided, he is directed to contact the assigned Assistant District Attorney upon receipt oft 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 aUd-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]).
Further, the bill of particulars set forth in the voluntary disclosure form provided to defendant has adequately informed defendant of the substance of the alleged conduct and in all respects complies with CPL Article 245 and Section 200.95.
II.
MOTION, to STRIKE NOTICED STATEMENTS and to PRECLUDE STATEMENT TESTIMONY CPL 710
The motion to strike is denied. Said notices are in conformity with the statutory requirements of CPL 710.30.
The People served CPL 710.30(1)(a) notices of two statements which defendant allegedly made on May 31, 2018 at 5pm at 150 South Avenue to a Mt. Vernon Police Officer and at 6:41pm at Mt. Vernon Police Department and on June 1, 2018 at 4:35am at Mount Vernon . Police Department and on June 17, 2018 at 2:30pm at Mount Vernon Police Department. Defendant's motion to suppress the noticed statements as unconstitutionally obtained is granted to the extent that a Huntley hearing shall be held prior to trial to determine whether the statement was involuntarily made by defendant within the meaning of CPL 60.45 (see CPL 710.20(3); CPL 7lO.6O[3][b]; People v Weaver, 49 N.Y.2d 1012 [1980]), obtained in violation of defendant's . Sixth Amendment right to counsel, and/or obtained in violation of the defendant's Fourth Amendment rights (see Dunaway v New York, 442 U.S. 200 [1979]).
III.
MOTION to INSPECT and DISMISS CPL ARTICLE 190
Defendant moves pursuant to CPL 2lO.2O(1)(b) and (c) to dismiss the indictment 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. The court has reviewed the minutes of the proceedings before the Grand Jury.
The indictment 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 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 crime, and alleges that the defendant committed the acts which constitute the crime 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]).
Pursuant to CPL 190.65(1), an indictment must be supported by legally sufficient evidence which establishes that the defendant committed the offenses charged. The evidence presented, if accepted as true, is legally sufficient to establish every element of the 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]).
A review of the minutes reveals that the evidence presented, if accepted as true, would be legally sufficient to establish every element of the offense charged (CPL 210.30 [2]). Accordingly, defendant's motion to dismiss the indictment is denied.
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 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 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]).
In making the present determination, the court does not find it necessary to order release of those portions of the Grand Jury minutes as constitute colloquy or instructions.
IV.
MOTION TO DISMISS for SPEEDY TRIAL VIOLATION
Defendant moves to dismiss the indictment on the basis that the 16-month preindictment delay from the alleged crimes on May 31, 2018, to the filing of the indictment on October 3, 2019, violated his right to due process. The Taranovich factors, defendant argues, weigh in favor of dismissal because the delay was substantial, the People had no legitimate reason for the delay, the underlying charge of criminally negligent homicide is a non-violent class "E" felony, and the defense has been prejudiced by the delay in that if the case had been prosecuted in a timely manner defense counsel could have retained a doctor to independently establish the cause of death of the child. As an alternative to dismissal, defendant requests a hearing on this matter. The People argue that the motion to dismiss should be denied as defendant's due process rights were not violated. The People point out that they met the five-year deadline in CPL 3O.lO(2)(b) for commencing the prosecution and argue that the Taranovich factors weigh against dismissal -- the delay was not substantial and resulted from the extensive investigation, the charges are serious, defendant was not incarcerated on this indictment during the delay, and defendant has failed to establish any prejudice. The court agrees with the People and denies the motion to dismiss, finding no violation of defendant's right to due process.
A defendant's right to a speedy trial is guaranteed both by the United States Constitution (US Const 6th, 14th Amends; Klopfer v North Carolina, 386 U.S. 213), and by statute (CPL 30.20 [1]; Civil Rights Law § 12). While New York's Constitution does not list the right to a speedy trial, it does list the right to due process and there are statutory speedy trial requirements under the due process doctrine (CPL 30.20; Civil Rights Law § 12). An unjustified delay in prosecution will deprive a defendant of the New York constitutional right to due process (NY Const, art I, § 6; People v Decker, 13 N.Y.3d 12, 14 [2009]). "Characterization of the delay as 'preindictment' or 'postindictment' is often determinative," inasmuch as a claim of unconstitutional preindictment delay "generally requires a showing of actual prejudice before dismissal would be warranted" (People v Singer, 44 N.Y.2d 241, 252 [1978] [internal citations omitted]). However, "[a] determination made in good faith to delay prosecution for sufficient reasons will not deprive defendant of due process even though there may be some prejudice to defendant" (People v Metellus, 157 A.D.3d 821 [2d Dept 2018]; see People v Decker, 13 N.Y.3d 12, 14 [2009]; People v Vernace, 96 N.Y.2d 886, 888 [2000]; People v Singer, 44 N.Y.2d at 254).
In determining whether a defendant's constitutional right to a speedy trial has been violated, the Court of Appeals has articulated five factors to consider: (1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charges; (4) any extended period of pretrial incarceration; and (5) any impairment of the defendant's defense (see People v Romeo, 12NY3d 51, 55 [2009]; People v Taranovich, 37 N.Y.2d 442, 444 [1975]). These factors apply as well to an analysis of a due process claim (see People v Decker, 13 N.Y.3d at 15 [2009]). No one factor or combination of factors is necessarily decisive; rather, the particular case must be considered in light of all of the applicable factors (People v Taranovich at 445). Where there has been extended delay, the People have the burden to establish good cause (see People v Decker, 13NY3d at 14 [2009]). Here, the People established good cause for the preindictment delay given the extensive investigation. The court finds no due process violation and, thus, denies the motion to dismiss the indictment.
V.
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 pre-trial hearing pursuant to People v Sandoval (34 N.Y.2d 371 [1974]). At said hearing, the People shall notify the defendant, in compliance with CPL Article 245, and in any event not less than 15 days prior to the first scheduled trial date, of all specific instances of defendant's criminal, prior uncharged criminal, vicious or immoral conduct of which they have knowledge and which they intend to use to impeach defendant's credibility if she elects to testify at trial.
At the hearing, the defendant shall bear the burden of identifying any instances of her prior misconduct that he submits the People should not be permitted to use to impeach her credibility. The defendant shall be required to identify the basis of her belief that each event or incident may be unduly prejudicial to ability to testify as a witness on her own behalf (see People v Matthews, 68 N.Y.2d 118 [1986]; People v Malphurs, 111 A.D.2d 266 [2d Dept 1985]).
Upon the consent of the People, if the People determine that they will seek to introduce at trial evidence in their case-in-chief of any prior uncharged misconduct and criminal acts of the defendant, the People shall 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 any such evidence may be used by the People 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 any other hearings ordered herein.
VI.
MOTION to STRIKE PREJUDICIAL LANGUAGE
The Defendant moves to strike certain language from the indictment on the grounds that it is surplusage, irrelevant or prejudicial. The language concluding the indictment merely identifies the Defendant's acts as public, rather than private wrongs and such language should not be stricken as prejudicial. This motion is denied (see People v Gill, 164 A.D.2d 867 [2d Dept 1990]; People v Winters, 194 A.D.2d 703 [2d Dept 1993]; People v Garcia, 170 Misc.2d 543 [Westchester Co. Ct. 1996]).
VII.
MOTION TO STRIKE ALIBI NOTICE
Defendant's motion to strike the alibi notice is denied. Contrary to the defendant's contentions, it is well-settled that CPL 250.00 is indeed in compliance with the constitutional requirements (see People v Dawson, 185 A.D.2d 854 [2d Dept 1992]; People v Cruz, 176 A.D.2d 751 [2d Dept 1991]; People v Gill, 164 A.D.2d 867 [2d Dept 1990]) and provides equality in the required disclosure (People v Peterson, 96 A.D.2di57l [2d Dept 1983]; see generally Wardius v Oregon, 412 U.S. 470 [1973]).
The foregoing constitutes the opinion, decision and order of the court.