Opinion
Indictment 18-0569
01-02-2019
THE PEOPLE OF THE STATE OF NEW YORK v. STEPHANIE SEGER, Defendants
HON. ANTHONY A. SCARPINO, JR. District Attorney, Westchester County 111 Dr. Martin Luther King, Jr. Boulevard BY: ELIZABETH J. KNOWLTON, ESQ Assistant District Attorney MARIA I. WAGER, ESQ. Assistant District Attorney CLARE J. DEGNAN, ESQ. The Legal Aid Society of Westchester County BY: KATIE D. WASSERMAN, ESQ.
Unpublished Opinion
HON. ANTHONY A. SCARPINO, JR.
District Attorney, Westchester County
111 Dr. Martin Luther King, Jr. Boulevard
BY:
ELIZABETH J. KNOWLTON, ESQ
Assistant District Attorney
MARIA I. WAGER, ESQ.
Assistant District Attorney
CLARE J. DEGNAN, ESQ.
The Legal Aid Society of Westchester County
BY: KATIE D. WASSERMAN, ESQ.
DECISION & ORDER
GEORGE E. FUFIDIO, J.
Defendant, STEPHANIE SEGER, having been indicted on or about September 20, 2018 for one count of aggravated driving while intoxicated - child in vehicle as a felony (VTL § 1192 (2-a(b))), one count of aggravated driving while intoxicated as misdemeanor (VTL § 1192 (2-a(a))); one count of driving while intoxicated as a misdemeanor (VTL § 1192(3)); one count of criminal contempt in the second degree (Penal Law § 215.50(3)); and a violation of VTL section 1128(a) has filed an omnibus motion which consists 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. Upon consideration of these papers, the stenographic transcript of the grand jury minutes and the Consent Discovery Order entered in this case, this Court disposes of this motion as follows:
A. MOTION TO INSPECT. DISMISS AND/OR REDUCE
The court grants the defendant's motion to the limited extent that the court has conducted, with the consent of the People, an in camera inspection of the stenographic transcription of the grand jury proceedings. Upon such review, the court finds no basis upon which to grant defendant's application to dismiss or reduce the indictment.
The grand jury was properly instructed (see 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]). The evidence presented, if accepted as true, is legally sufficient to establish every element of each 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]). This prong of the Defendant's motion is denied.
Additionally, the Court finds that the Defendant has not met his high burden of demonstrating that the integrity of the grand jury proceedings was impaired by any error, let alone one that would render the proceedings defective and prejudicial to the Defendant (People v Darby, 75 N.Y.2d 449 [1990], People v Thompson, 22 N.Y.3d 687 [2014]), nor does the Court find that there was any such error. Among other things the minutes reveal a quorum of the grand jurors was present during the presentation of evidence, that the Assistant District Attorney presented the evidence fairly and properly instructed the grand jury on the law and only permitted those grand jurors who heard all the evidence to vote the matter. Accordingly, this prong of the defendant's motion is also denied.
Based upon the in camera review, since this court does not find release of the grand jury minutes or any portion thereof necessary to assist it in making any determinations and as the defendant has not set forth a compelling or particularized need for the production of the grand jury minutes, defendant's application for a copy of the grand jury minutes is denied (People v Jang, 17 A.D.3d 693 [2d Dept 2005]; CPL 190.25 [4] [a]).
B and C. MOTION FOR DISCOVERY. DISCLOSURE AND INSPECTION CPL ARTICLE 240
Except where the People have already disclosed or consented to the inspection and discovery of certain evidence, the Defendant's motion for discovery is granted to the extent provided for in CPL 240. If there any further items discoverable pursuant to Criminal Procedure Law Article 240 which have not been provided to defendant pursuant to this Order, they are to be provided forthwith or the People shall seek a protective order explaining to the Court why certain items have not been provided to the Defendant pursuant to CPL 240.
As to the defendant's demand for exculpatory material, the People have acknowledged their continuing duty to disclose exculpatory material at the earliest possible date upon its discovery (see, Brady v Maryland, 373 U.S. 83 [1963]; Giglio v United States, 405 U.S. 150 [1972]). In the event that the People are, or become, aware of any material which is arguably exculpatory and they are not willing to consent to its disclosure to the defendant, they are directed to immediately disclose such material to the court to permit an in camera inspection and determination as to whether the material must be disclosed to the defendant.
Except to the extent that the defendant's application has been specifically granted herein, it is otherwise denied as seeking material or information beyond the scope of discovery (see, People v Colavito, 87 N.Y.2d 423 [1996]; Matter of Brown v Grosso, 285 A.D.2d 642 [2d Dept 2001]; Matter of Brown v Appelman, 241 A.D.2d 279 [2d Dept 1998]; Matter of Catterson v Jones, 229 A.D.2d 435 [2d Dept 1996]; Matter of Catterson v Rohl, 202 A.D.2d 420 [2d Dept 1994]).
D. MOTION FOR SANDOVAL AND VENTIMIGLIA HEARINGS
The 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 act, and vicious or immoral conduct (see, People v Sandoval, 34 N.Y.2d 371 [1974]). The People have consented to, and it is now ordered that immediately prior to trial the court will conduct a Sandoval hearing.
At the hearing, the People are required to notify the Defendant of all specific instances of his criminal, prior uncharged criminal acts and 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 (CPL 240.43). The Defendant shall then 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 him should he decide testify as a witness on his own behalf and thereby prevent him from exercising this right (see, People v Matthews, 68 N.Y.2d 118 [1986]; People v Malphurs, 111 A.D.2d 266 [2d Dept 1985]).
The Defendant's application for a Ventimiglia hearing is denied as premature, because the People have not indicated an intention to use any evidence of prior bad act or uncharged crimes of the Defendant in its case in chief (see, People v Molineaux, 168 N.Y.2d 264 [1901]; People v Ventimiglia, 52 N.Y.2d 350 [1981]). The People have stated that if they do intend to use any Molineaux evidence that they will inform the defense and the court of their intention and at that point the Defendant may renew this aspect of his motion.
E. MOTION TO STRIKE STATEMENT NOTICES
The motion to strike is denied. Said notices are in conformity with the statutory requirements of CPL 710.30 and were served in the proper time frame. Finally, because the Defendant has filed a suppression motion based upon the notices that were served, he has waived his right to be heard on the sufficiency of the notices (People v Kirkland, 89 N.Y.2d 903 [1996]).
F. MOTION TO SUPPRESS NOTICED STATEMENTS
This branch of the Defendant's motion seeking to suppress statements on the grounds that they were unconstitutionally obtained is granted to the extent that a Huntley hearing shall be held prior to trial to determine whether any statements allegedly made by the Defendant, which have been noticed by the People pursuant to CPL 710.30 (1)(a) were involuntarily made by the 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]), 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]).
G. MOTION TO SUPPRESS PHYSICAL EVIDENCE
Defendant moves to suppress any evidence obtained as a result of the arrest, search and seizure of evidence including any chemical test that was performed on him. Specifically, defendant moves for suppression of the results of the chemical test. This branch of the defendant's motion is granted solely to the extent of conducting a Mapp hearing prior to trial to determine the propriety of any search resulting in the seizure of evidence (see Mapp v Ohio, 367 U.S. 643[1961]) including the results of the chemical test to determine, inter alia, whether the defendant expressly consented to the chemical test (see eg, People v Atkins, 85 N.Y.2d 1007, 1008 [1995] and/or that it was administered in accord with VTL §1194 (2)(a) (see People v Atkins, 85 N.Y.2d 1007, 1008 [1995]). Notably, the two hour limit set forth in VTL §1194(2)(a)(1) has no application where a defendant expressly arid voluntarily consents to a test as opposed to where a defendant is deemed to have consented (People v Elysee, 12 N.Y.3d 100, 105 [2009]). In the event the court finds that the defendant was deemed to have consented, the court will then consider whether the two hour statutory criteria as set forth in VTL§ 1194(2)(a)(1) was followed. The hearing will also address whether any evidence was obtained in violation of the defendant's Fourth Amendment rights (see Dunaway v New York, 442 U.S. 200 [1979]).
Any person who operates a motor vehicle in this state shall be deemed to have given consent to a chemical test of.. . breath, blood, urine, or saliva, for the purpose of determining the alcoholic and/or drug content of the blood (People v Elysee, 12 N.Y.3d 100, 105 [2009]).
H. MOTION TO STRIKE ALIBI NOTICE
The 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.2d 871 [2d Dept 1983]; see generally Wardius v Oregon, 412 U.S. 470 [1973]).
The foregoing constitutes the opinion, decision and order of this Court.