Opinion
Docket No. 20-0310D
01-20-2021
THE PEOPLE OF THE STATE OF NEW YORK, v. JOSE VAZQUEZ, Defendant.
Hon. Miriam E. Rocah Westchester County District Attorney Att: Pavel Williams, Esq. Assistant District Attorney The Legal Aid Society Att: S. Ken Jones, Esq.
Unpublished Opinion
Hon. Miriam E. Rocah Westchester County District Attorney Att: Pavel Williams, Esq. Assistant District Attorney
The Legal Aid Society Att: S. Ken Jones, Esq.
SUSAN M. CAPECI, JUDGE
The defendant, charged by indictment with three counts of assault in the second degree (P.L. 120.05 (3) - 2 counts, and P.L. 120.05 (2) - one count), eight counts of criminal contempt in the first degree (P.L. 215.51 (b)(vi) - 4 counts, and P.L. 215.51 (c) -4 counts), two counts of criminal possession of a weapon in the third degree (P.L. 265.02 (1)), and four counts of aggravated criminal contempt (P.L. 215.52(1)), makes this omnibus motion seeking: 1) inspection of the grand jury minutes by the Court and the defendant, and thereafter, for the dismissal of the indictment and/or reduction of the charges contained therein, including on the ground that the indictment is multiplicitous; 2) an order for further discovery; 3) a Sandoval/Ventimiglia/Molineux hearing; and 4) a reservation of rights to make further pre-trial motions as necessary and hold any pretrial hearings 20 days in advance of trial.
The People consent to an in camera review by the Court of the Grand Jury minutes for legal sufficiency and the release of the grand jury testimony to the defendant, and consent to a Sandoval/Ventimiglia/Molineux hearing, but otherwise oppose the motion. The Court now finds as follows.
1. MOTION TO INSPECT THE GRAND JURY MINUTES AND TO DISMISS AND/OR REDUCE THE INDICTMENT
Defendant moves pursuant to CPL §§210.20(1)(b) and [c] 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. The Court has reviewed the minutes of the proceedings before the Grand Jury.
Pursuant to CPL §190.65(1), an indictment must be supported by legally sufficient evidence which establishes that the defendant committed the offenses charged. Legally sufficient evidence is competent evidence which, if accepted as true, would establish each and every element of the offense charged and the defendant's commission thereof (CPL §70.10[1]); People v Jennings, 69 N.Y.2d 103 [1986]). "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 Bello, 92 N.Y.2d 523 (1998); People v Ackies, 79 A.D.3d 1050 (2nd Dept 2010)). In rendering a determination, "[t]he reviewing court's inquiry is limited to whether the facts, if proven, and the inferences that logically flow from those facts supply proof of each element of the charged crimes and whether the grand jury could rationally have drawn the inference of guilt" (Bello, supra, quoting People v Boampong, 57 A.D.3d 794 (2nd Dept 2008- internal quotations omitted).
A review of the minutes reveals that the evidence presented, if accepted as true, would be legally sufficient to establish every element of the offenses charged (see CPL §210.30[2]). Accordingly, Defendant's motion to dismiss or reduce for lack of sufficient evidence is denied.
With respect to Defendant's claim that the Grand Jury proceeding was defective within the meaning of CPL §210.35, a review of the minutes supports a finding that a quorum of the grand jurors was present during the presentation of evidence and at the time the district attorney instructed the Grand Jury on the law, that the grand jurors who voted to indict heard all the "essential and critical evidence" (see People v Collier, 72 N.Y.2d 298 [1988]; People v Julius, 300 A.D.2d 167 [1st Dept 2002], Iv den 99 N.Y.2d 655 [2003]), and that the Grand Jury was properly instructed (see People v Calbud, 49 N.Y.2d 389 [1980] and People v Valles, 62 N.Y.2d 36 [1984]).
The defendant also asserts that the 12 counts of the indictment charging him with criminal contempt in the first degree pursuant to P.L. 215.51 (b)(vi) (4 counts), criminal contempt in the first degree pursuant to P.L. 215.51(c) (4 counts), as well as the charges of aggravated criminal contempt (P.L. 215.52 (1) (4 counts), should be dismissed as multiplicitous, because they are all based upon the same conduct which occurred on a single date, May 12, 2020. He contends that the first 3 orders of protection that he was charged with violating, which were issued on separate dates, all merged into a fourth order of protection issued on January 14, 2020, so that charging him with multiple counts for the same conduct resulted in a multiplicitous indictment.
As the People point out in their response, the defendant was charged in the indictment with having violated four separately issued orders of protection, each pertaining to a separate case, issued out of the Yonkers City Court on different dates. Each of these prior convictions are evidenced in the 4 separate special informations filed with the indictment. There is no authority to indicate that the 3 orders of protection previously issued with respect to separate cases involving this victim, each "merged" into the fourth order of protection.
An indictment is multiplicitous when a single offense is charged in more than one count (People v Senisi, 196 A.D.2d 376 (2d Dept 1994)). "Multiplicity does not exist where each count requires proof of an additional fact that the other does not," or where "a conviction on one count would not be inconsistent with acquittal on the other" (People v Saunders, 290 A.D.2d 461, 463 (2d Dept 2002); People v O'Brien, 186 A.D.3d 1406, 1408 (2d Dept 2020)). In this case, there is no multiplicity since counts 3, 4, 5 and 6 each involved violation of a different underlying order of protection, issued in separate cases on separate dates. Further, counts 7, 8, 9, and 10 alleged violations of different subdivisions of the Penal Law with respect to each of the counts of criminal contempt in the first degree charged in counts 3, 4, 5 and 6 of the indictment (see People v Jackson, 264 A.D.2d 857 (2d Dept 1999).
The charges of aggravated criminal contempt in counts 15, 16, 17, and 18, similarly require violation of different provisions of the Penal Law from the other charges, and each of these charges also pertains to a different underlying order of protection, issued in separate cases on separate dates. Accordingly, the defendant's motion to dismiss the above noted counts of the indictment as multiplicitous is denied.
In making this determination, the Court does not find that release of such portions of the Grand Jury minutes as have not already been disclosed pursuant to CPL Article 245 to the parties was necessary to assist the Court.
2. MOTION FOR FURTHER DISCOVERY
Defendant's motion for discovery is granted to the extent provided for in Criminal Procedure Law Article 245 and/or already provided by the People. If any items set forth in CPL Article 245 have not already been provided to Defendant pursuant to that Article, said items are to be provided forthwith. Any party is granted leave, if required, to apply for a Protective Order in compliance with CPL Article 245, upon notice to the opposing party and any party affected by said Protective Order.
The defendant objects to the Certificate of Compliance filed by the People, asserting that the People have failed to disclose statements he made to police officers whereby he indicated his refusal to comply with their orders or commands. The People respond that they have turned over all information pertaining to any statements of the defendant, and that the defendant did not make any statements to police officers they are aware of.
Based upon the People's representation that they have not disclosed any verbal statements of the defendant to police officers since none were made, the People have met their obligation on this issue in filing their Certificate of Compliance. However, the People are directed to disclose any information they may become aware of in this regard pursuant to their continuing duty to disclose (CPL 245.60; 245.20 (a)).
3. MOTION FOR SANDOVAL/VENTIMIGLIA/MOLINEUX HEARING
Granted, solely to the extent that Sandoval/Ventimiglia/Molineux hearings, as the case may be, shall be held immediately prior to trial, as follows:
A. Pursuant to CPL §245.20, the People must notify the Defendant, not less than fifteen days prior to the first scheduled date for trial, of all specific instances of Defendant's uncharged misconduct and criminal acts of which the People have knowledge and which the People intend to use at trial for purposes of impeaching the credibility of the Defendant, or as substantive proof of any material issue in the case, designating, as the case may be for each act or acts, the intended use (impeachment or substantive proof) for which the act or acts will be offered; and
B. Defendant, at the ordered hearing, must then sustain his burden of informing the Court of the prior misconduct which might unfairly affect him as a witness in his own behalf (see People v Malphurs, 111 A.D.2d 266 [2nd Dept 1985]).
6. MOTION FOR A RESERVATION OF RIGHTS TO FILE FURTHER PRE-TRIAL MOTIONS/ HOLD HEARINGS 20 DAYS IN ADVANCE
The defendant requests leave to make further motions as necessary. The defendant's motion is denied. CPL 255.20 is controlling with respect to the time frame for making pre-trial motions and there have been no allegations of good cause for making further motions outside of those time constraints. Any such request will be considered at the time it is made.
The defendant's further request for any hearings in this case to be held at least 20 days in advance of trial to allow transcription of the hearing minutes is denied. A request for any hearing minutes to be expedited if necessary will be considered at the time it is made.
This constitutes the Decision and Order of this Court.