Opinion
Index 19-0944
02-04-2020
THE PEOPLE OF THE STATE OF NEW YORK v. ADAN LEON VILLANO JORGE ARCE VILLANO FELICIANO "FELIX" PEREZ BAUTISTA, Defendant.
HON. ANTHONY A. SCARPINO, Jr. District Attorney, Attn: A.D.A. Shea Scanlon Lomma. LEVINE & MONTANA, Attn: Matthew Montana, Esq. Attorneys for defendant, Feliciano Felix Perez Bautista.
Unpublished Opinion
HON. ANTHONY A. SCARPINO, Jr. District Attorney, Attn: A.D.A. Shea Scanlon Lomma.
LEVINE & MONTANA, Attn: Matthew Montana, Esq. Attorneys for defendant, Feliciano "Felix" Perez Bautista.
DECISION & ORDER
ANNE E. MINIHAN JUDGE.
Defendant FELICIANO "FELIX" PEREZ BAUTISTA. charged by Westchesfer" County Indictment No. 19-0944 with Gang Assault in the Second Degree (Penal Law § 120.06), 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, entered in this case, the court disposes of the motion as follows:
I. MOTION to INSPECT and DISMISS CPL ARTICLE 190
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.
Contrary to defendant's claim, a review of the Grand Jury minutes reveals that the evidence presented, if accepted as true, is legally sufficient to establish every element of each offense charged (CPL 210.30[2]); thus, defendant's motion to dismiss on this basis 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[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]).
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 reveal 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. Voiles, 62 N.Y.2d 36 [1984]; People v. Burch, 108 A.D.3d 679 [2d Dept 2013]).
In making this determination, the Court does not find it necessary to release to the parties portions of the Grand Jury minutes as are not subject to disclosure pursuant to CPL Article 245.
II. 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 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.
To the extent the People cross-move for reciprocal discovery, it is likewise granted to the extent provided for in CPL Article 245. 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.
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]).
III. 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 he elects to testify at trial.
At the hearing, 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 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]).
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.
IV. MOTION to PRECLUDE IDENTIFICATION TESTIMONY CPL 710
The People served CPL 710.30(1)(b) notice of three identifications of defendant at the Yonkers Police Department, two on July 9, 2019 - - one at approximately 10:00 p.m. from a video and one at approximately 10:30 p.m. from a single photo, and one on July 12, 2019 at approximately 1:22 a.m. from a photographic array. Defendant's motion to suppress 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, denied 498 U.S. 833 [1990]; People v. Berrios, 28 N.Y.2d 361 [1971]). Once that burden is met, the 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.
V. MOTION FOR a SEVERANCE and FOR a SEPARATE TRIAL
The defendant moves for a severance from his co-defendants and for a separate trial. The defendant was properly joined in the indictment (CPL 200.40[l][d]). While the court may, in its discretion and for good cause shown, order that defendant be tried separately, defendant failed to demonstrate good cause for severance. Where the proof against all defendants is supplied by the same evidence, "only the most cogent reasons warrant a severance" (People v. Bornholdt, 33 N.Y.2d 75, 87 [1973]; People v. Kevin Watts, 159 A.D.2d 740 [2d Dept 1990]). "[A] strong public policy favors joinder, because it expedites the judicial process, reduces court congestion, and avoids the necessity of recalling witnesses" (People v. Mahboubian, 74 N.Y.2d 174, 183 [1989]).
Defendant's speculation that a codefendant would pursue an antagonistic defense is an insufficient basis to proceed with separate trials (People v. Chaplin, 181 A.D.2d 828 [2d Dept 1992]). Defendant's argument that he could potentially be prejudiced by a Sandoval ruling is denied as premature, with leave to renew after a Sandoval ruling, and upon a showing that a joint trial will result in unfair prejudice to him and substantially impair his defense. Notably, a limiting instruction at trial would properly direct the jury to separately consider the proof as to each crime charged, thereby eliminating any prejudice to the defendant (see People v. Veeny, 215 A.D.2d 605 [2d Dept 1995]).
Defendant's claim that severance is necessary because the statements of his codefendants could inculpate him and may ultimately result in a Bruton violation is premature. In Bruton v. United States, 391 U.S. 123 [1968], the Supreme Court held that the admission of a confession made by one defendant, who does not testify, and which contains references implicating his codefendant, violates the latter's right of cross-examination under the Confrontation Clause. The court noted that there is a substantial risk that the jury, even with limiting instructions, may consider the implicating references in determining the codefendant's guilt. Unless the implicating references can be effectively deleted, the statement is not admissible unless separate trials are had. However, the New York Court of Appeals has defined certain instances where the Bruton rule would not be violated including where the confessing defendant testifies at the trial, thus affording the codefendant an opportunity to cross-examine him (see People v. Anthony, 24 N.Y.2d 696 [1969]) and where the codefendant has himself confessed substantially to the same effect as the confessing defendant (People v. McNeil, 24 N.Y.2d 550 [1969]). Defendant's motion is denied as premature, with leave to renew.
VI. MOTION to PRECLUDE STATEMENT TESTIMONY CPL 710
The People served CPL 710.30(1)(a) notice of statements allegedly made by defendant to detectives at the Yonkers Police Department on July 11, 2019 at approximately 8:00 p.m. and on July 12, 2019 at approximately 2:00 p.m. The motion to suppress is granted to the extent of ordering a pretrial Huntley hearing to determine whether the statements were involuntarily made by defendant within the meaning of CPL 60.45 (see CPL 710.20(3); CPL 710.60[3][b]; People v. Weaver, 49 N.Y.2d 1012 [1980]), and/or obtained in violation of defendant's Fourth Amendment rights (see Dunaway v. New York, 442 U.S. 200 [ 1979]).
VII. MOTION to SUPPRESS PHYSICAL EVIDENCE
Defendant moves to suppress all physical evidence on the basis that his arrest was unlawful. Alternatively, defendant moves for a Mapp/Dunaway hearing. To the extent that defendant moves to suppress any evidence obtained pursuant to the July 12, 2019 search warrant order pertaining to his home, that branch of the motion is denied. 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 corners of the supporting search warrant affidavit, the warrant was 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]).
Defendant's motion to suppress physical evidence is granted solely to the extent of ordering a pre-trial Mapp hearing to determine the propriety of any search, not pursuant to a search warrant, which resulted in the seizure of property (see Mapp v. Ohio, 367 U.S. 643 [1961]).. The hearing will address whether defendant consented to a search of his phone. 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]).
VIII. MOTION to PRECLUDE UNNOTICED STATEMENTS and UNNOTICED IDENTIFICATION TESTIMONY
The motion to preclude unnoticed statements and identification testimony is denied as premature. The People acknowledge the statutory requirements of CPL 710.30.
IX. MOTION for LEAVE to FILE FUTURE MOTIONS
This motion is denied. Any future motion must be brought by way of order to show cause setting forth reasons as to why said motion was not brought in conformity with CPL 255.20. The foregoing constitutes the opinion, decision and order of the court.