Opinion
01559–2017
05-24-2018
The PEOPLE of the State of New York, Plaintiff, v. Alejandro VIZCARRONDO, Defendant.
Plaintiff—ADA William Porter Defendant—The Legal Aid Society by Felicia Leak, Esq.
Plaintiff—ADA William Porter
Defendant—The Legal Aid Society by Felicia Leak, Esq.
Armando Montano, J.
The defendant was indicted by the Grand Jury of Bronx County and charged with Criminal Possession of a Firearm and Criminal Possession of a Weapon in the Fourth Degree.
By omnibus motion, defendant moves for various forms of pretrial relief. The motion is decided as follows:
Grand Jury Proceedings
Defendant's application for inspection of the Grand Jury minutes and for dismissal of the indictment or reduction of the charges therein is granted to the extent that the Court has examined the Grand Jury minutes in camera to determine their legal sufficiency. Upon inspection, the motion to dismiss or reduce the charges is denied . However, the Court notes that during the presentation to the Grand Jury, the People failed to elicit testimony that the location of the alleged incident occurred in the County of the Bronx. Although the People failed to establish venue by direct testimony, it is not fatal, as venue can be established by a preponderance of the evidence. [NY Crim. Proc. Laws § 20.40(1)(a). See , People v. McLaughlin , 80 NY2d 466 (NY 1992) ]. During the Grand Jury presentation, the People presented testimony from Police Rodriguez. Police Officer Rodriguez testified that he was assigned to the 41st Precinct and that he responded to a 911 call at 1117 Westchester Avenue on June 28, 2017 at approximately 1:50 p.m. (Grand Jury Transcript, page CB4).
Thus, upon a review of the Grand Jury minutes and upon taking judicial notice, this Court determines that Officer Rodriguez's statement that he was from the 41st Precinct coupled with the testimony that he responded to 1117 Westchester Avenue satisfies the inference that the alleged incident occurred in Bronx County. Steingut v. Gold , 42 NY2d 311 (NY 1977) [Jurisdiction can be fairly and reasonably inferred from all the facts and circumstances introduced into evidence]. People v. Rodriguez , 168 Misc 2d 423, 641 N.Y.S.2d 975, 1996 NY Misc. LEXIS 117 (NY Sup. Ct. 1996) [Jurisdiction can be inferred when not an element of the crime], see also, People v. Chaitin , 94 AD2d 705 (NY App. Div. 2d Dep't 1983).
The Court finds that the remaining procedures were properly followed by the district attorney. The charges given to the Grand Jury were proper and the evidence submitted was legally sufficient to establish those charges. The minutes also reveal that there was a quorum of the Grand Jury present during the presentation of evidence and at the time the District Attorney instructed the Grand Jury on the law. Defendant's application for release of the Grand Jury minutes is also denied because it is unnecessary for the determination of this motion. [ CPL 210.30(3) ].
Hearings
The defendant was served with notice pursuant to CPL § 710.30 that the People intend to introduce statements allegedly made by defendant. In the omnibus motion, defendant seeks to suppress the statements, or in the alternative, requests a Huntley/Dunaway hearing. The People consent to a Huntley hearing. However, the People oppose defendant's motion to expand the Huntley hearing to a Huntley/Dunaway .
Upon a review of the motion papers, this Court finds that the defendant has provided sufficient allegations of fact to warrant a Huntley/Dunaway hearing. Accordingly, a Huntley/Dunaway hearing is ordered .
The defendant also moves to suppress any and all physical evidence seized from his person or from an area under his dominion or control (to wit: a firearm), as the defendant argues that the physical evidence recovered were fruits of an illegal arrest. In the alternative, the defendant requests a Mapp/Dunaway hearing. The People oppose this branch of defendant's omnibus motion.
Upon a review of the motion papers, this Court finds that defendant has provided sufficient allegations of fact to warrant a Mapp/Dunaway. Accordingly, a Mapp/Dunaway hearing is ordered .
The defendant's motion for a Sandoval/Ventimiglia hearing is referred to the trial judge.
Pursuant to CPL § 240.43, immediately prior to the commencement of jury selection, the prosecutor is directed to notify defendant of all specific instances of any prior uncharged criminal, vicious or immoral conduct of which the prosecutor has knowledge and which the prosecutor intends to use at trial for purposes of impeaching defendant's credibility.
REMAINING REQUESTS FOR RELIEF
The District Attorney is reminded of their obligation to comply with discovery demands pursuant to CPL §§ 200.95(2) and 240.20.
The defendant is reminded of the continuing obligation to provide the People with reciprocal discovery pursuant to CPL § 240.30.
The District Attorney is reminded of the continuing obligation to provide all Brady and Rosario material to defendant. The District Attorney is advised to review and comply with the attached Brady order pursuant to the Administrative Order of the Chief Judge.
Upon a proper showing, the Court will entertain appropriate additional motions based upon grounds of which the defendant could not, with due diligence, have been previously aware, or which, for other good cause could not reasonably have been raised in this motion. See CPL § 255.20(3).
The foregoing constitutes the Decision and Order of this Court.