### People v Faul 2022 NY Slip Op 34779(U) May 11, 2022 County Court, Westchester County Docket Number: Indictment No. 22-70198 Judge: George E. Fufidio Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York State and local government sources, including the New

York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.COUNTY COURT: STATE OF NEW YORK COUNTY OF WESTCHESTER



### ------------------------------------- , 

### --------------· ----------~)("'' THE PEOPLE OF THE STATE OFNEW YORK**~** 

## FILED rtr-against

## MAY 112022 BRANDON FAUL, lD,IOlHYC.IOONI 

## ooomvCt.ERK CQUNtYOFwesrQiESIER Defendant. 

### ------------------------------------------------------------------X FUFIDIO, J. DECISION 

### & ORDER IndictmentNo,: 22-70198

Defendant, BRANDON FAUL, having been indicted on oraboutNovember 30, 2021 on two counts driving while ability impaired by drugs as a felony (Vehicle and Traffic Law § 1192 [4-a]), as well as two traffic violations (Vehicle and Traffic Law§ 1128[a], failure to stay in lane and Vehicle and Traffic Law §1163[ d], failure to signal) has filed an omnibus motion which consists ofa Notice ofMotion, an Affirmation in $upport and a Memorandum ofLaw, In response, the People have filed an Affirmation in Opposition together with a Memorandum of Law, Upon consideration ofthese papers, the stenographic transcript ofthe grandjury minutes this Court disposes ofthis motion as follows:


### A. MOTION TO INSPECT AND THE GRAND JURY MINUTES AND TO DISMISS AND/ORREDUCE THE INDICTMENT

Defendant moves pursuant to CPL §§210.20(1)(b) and (c) to dismiss the indictment, or counts thereof, onthe grounds that the evidence before the Grand Jury was legally insufficient and that the Grand Jury proceeding was defective within the meaning ofCPL §210.35. ·The Courthas reviewed the minutes ofthe proceedings before the Grand Jury. Pursuant to CPL §190.65(1), an indictment must be supported by legally sufficient evidence which establishes thatthe defendant committedthe offenses charged. Legally sufficient evidence is competent evidence which, ifaccepted as true, would establish each and every element ofthe offense charged and the defendant's commission thereof(CPL §70.10[1]); People vJennings, 69 NY2d 103 [1986]). "Inthe context ofa grandjuryproceeding, legal sufficiency meansprima facie proofofthe crimes charged, notproofbeyond a reasonable

.doubt."People vBello, 92 NY2d 523 (1998); People vAckies, 79 AD3d 1050 (2nd bept2010).

Inrendering a determination, "[t]he reviewing court's inquiry is limited to whetherthe facts, if proven, and the inferences that logically flow from those facts supply proofofeach element of the charged crimes and whetherthe grandjury could rationally have drawn the inference of guilt." Bello, supra, quoting People vBoampong, 57 AD3d 794 (2nd Dept 2008-- internal quotations omitted).- A review ofthe minutes reveals thatthe evidence presented, ifaccepted as true, would be legally sufficientto establish every element ofthe offenses charged (see CPL §210.30[2]). Specifically, there wasprima facie evidence thatthe defendant had, at the very least, recently taken methadone; had driven erratically and crashed his car and that via field sobriety tests administered by the responding State Trooper, showed he was impaired.



### [* 1]With respect to Defendant's claim that the Grand Jury proceeding was defective within the meaning ofCPL §210.35, a review ofthe minutes supports a finding that a quorum ofthe grandjurors was present during the presentation ofevidence and at the time the dtstrict attorney instructed the Grand Jury onthe law, that the grandjurors who voted to indict heard all the "essential and critical evidence" (see People v Collier, 72 NY2d 298 (1988]; People vJulius, · 300 AD2d 167 [1 st Dept 2002], Iv den 99 NY2d 655 [2003]). The Grand Jury was properly instructed (see People v Calbud, 49 NY2d 389 (1980] and People v. Valles, 62. NY2d 36 [1984])._ In making this determination, the Court does not find that release ofsuchportions ofthe Grand Jury minutes as have not already been disclosed pursuantto CPL Article 245 to the parties
was necessary to assist the Court.
B. MOTION FORSANDOVALIVENTIMJGLIA/MOLJNEUXHEARING
Granted, solelyto the extentthatSandoval/Ventimiglia/Molineuxhearings, as the case may be, shall be held immediately priorto trial, as follows: 

### I. 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 ofimpeaching the credibility ofthe Defendant, or as substantive proofofany material issue in the case, designating, as the case may be for each act or acts, the intendeduse (impeachmentor substantiveproof) for which the act oracts will be offered; and II. Defendant, atthe ordered hearing, must then sustain his burden ofinforming the Court ofthe priormisconduct which mightunfairly affect him as a witness in his own behalf (see, People v. Malphurs, 111 AD2d 266 [2nd Dept. 1985]).

C. MOTION FORFURTHERDISCOVERY AND INSPECTION 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. 

### Ifany items set forth in CPL Article 245 have not already beenprovided to Defendantpursuant to that Article, said items are to be provided forthwith. Any party is granted leave, ifrequired, 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 People are directed to file a Certification ofCompliance with CPL Article 245 and the instant Orderupon completion oftheir obligations thereunder, ifthey have not already done so. The People's cross-motion for reciprocal discovery is likewise grantedto the extentprovided for in Criminal Procedure Law Article 245, and/or already provided to the People. The People are further reminded that any response to a demand for a bill ofparticulars by Defendant shall adequately inform Defendant ofthe substance ofthe alleged conduct, and in all respects comply with CPL Article 245 and §200.95, within 15 days ofthe date ofthe request. However, because the Defendanthas not demanded a Bill ofParticulars within the timeframe set forth in the Criminal Procedure Law, the Court denies the Defendant a Bill ofParticulars (CPL 200.95[3]). In any event, the Defendant has received more than enough information through the authorized discovery channels by which to adequately formulate his defense (CPL 200.95[5]). The Defendant's request that the Court conduct an in camera inspection ofthe People's file for exculpatory evidence is denied.



### [* 2]In addition, pursuant to Administrative Order 393/19, it is: ORDERED, that the District Attorney and the Assistant District Attorney responsible for the case, are required to make timely disclosure ofinformation favorable to the defense as required by Brady vMaryland, 373 US 83 [1963]; Giglio v UnitedStates, 405 US 150 [1972]; People v Geaslen, 54 NY2d 510 [1981]; and theirprogeny under the United States andNew York State Constitutions and by Rule 3.8(b) ofthe NewYork State Rules orProfessional Conduct; and it is further ORDERED, that the District Attorney and the Assistant DistrictAttorney responsible for the case or, ifthe matter is not being prosecuted by the District Attorney, the prosecuting agency and its assigned representatives, have a duty to learn ofsuch favorable information that is known to others acting on the government's behalfin the case, including the police, and are therefore expected to confer with investigative and prosecutorial personnel who acted in the case and to review all files which are directly related to the prosecution or investigation ofthis case. For purposes ofthis Order, favorable information can include but is not limited to: a) Information that impeaches the credibility ofa testifying prosecution witness, including 

### {i) benefits, promises, or inducements, express ortacit, made to a witness by a law enforcement official orlawenforcement victim services agency in connectionwith giving testimony or cooperating in the case; (ii) a witness's prior inconsistent statement, written ororal; • (iii) a witness's prior convictions and uncharged criminal conduct; (iv) information that tends to sowthat a witness has a motive to lie to inculpate the defendant, or a bias against the defendant or in favor ofthe complainant·or the prosecution; and (v) information that tends to show impairment ofa witness's ability to perceive, recall, or recount relevant events, including impairment resulting from mental orphysical illness or substance abuse; b) Information that tends to exculpate, reduce the degree ofan offense, or scupport a potential defense to a charged offense; c) Information thattends to mitigate the degree ofthe defendant's culpability as to a charged offense, orto mitigate punishment; d) Information that tends to undermine evidence ofthe defendant's identity as a perpetrator ofa charged crime, such as a non-identification ofthe defendant by a witness to a charged crime or an identification or other evidence implicating an~ther person in a manner that tends to cast doubt on the defendant's guilt; and e) Informationthat could affect in the defendant's favor the ultimate decision on a suppression motion; and it is further



### [* 3]ORDERED, that the District Attorney and the Assistant District Attorney responsible for the case or any other agent prosecuting the case is hereby advised ofhis/her duty to disclose favorable information whether ornot such information is recorded in tangible form and irrespective ofwhetherthe prosecutor credits the information; and it is further ORDERED, that the District Attorney and the Assistant District Attorney responsible for the case or any other agent responsible for the prosecution ofthe case is directed that favorable information must be timely disclosed-in accordance withthe United States andNewYork State constitutional standards, as well as CPL Article 245. Disclosures are presumptively "timely" if they are completed no laterthan 30 days before commencement oftrial in a felony case and 15 days before commencement oftrial in a misdemeanorcase. Records ofajudgmentofconviction
or a pending criminal action ordinarily are discoverable withinthe time frame provided in CPL Article 245. Disclosures thatpertain to a suppression hearing are presumptively "timely" ifthey
are made no later than 15 days before the scheduled hearing date; and it is further ORDERED, that the District Attorney and the Assistant District Attorney responsible for the case orany other agent responsible for the prosecution ofthe case is hereby reminded and informed that his/her obligation to disclose is a continuing one; and it further ORDERED, notwithstanding the foregoing, that a prosecutor may apply for a protective order, which may be issued for good cause, and CPL Article 245 shall be deemed to apply, with respect to disclosures required under this Order. Moreover, the prosecutor may request a ruling from the court on the need for disclosure. Only willful and deliberate conduct will constitute a violation ofthis Order or be eligible to result inpersonal sanctions against the prosecutor; and it is further ORDERED, that counsel for the defendant is required to: a) confer withthe defendant about his/her case and is required to keep the defendant informed about all significant developments inthis case; and b) timely communicate any and all pleaoffers to the defendant and to provide him/her with reasonable advice aboutthe advantages and disadvantages ofany such plea offer including the potential sentencing ranges that apply in the case; c) where applicable, insure the defendantreceives competent advise concerning immigration consequences as required underPadilla v. Kentucky, 559 US 356 [2010]; ·d) perform a reasonable investigation ofthe facts and the lawpertinent to the case (including, as applicable, visiting the scene, interviewing witnesses, subpoenaing pertinent materials, consulting experts, inspecting exhibits, reviewing all discovery materials obtained from the prosecution, researching legal issues, etc.) or, as appropriate, making a reasonable professionaljudgmentnot to investigate a particularmatter; e) comply with the requirements ofthe NewYork State Rules ofProfessional Conduct regarding conflicts ofinterest, and when appropriate, timely notify the court ofa possible conflict so that an inquiry may be undertaken or a ruling made;



### [* 4]

### f) possess or acquire a reasonable knowledge and familiarity with criminal procedural and evidentiary lawto ensure constitutionally effective representation in the case; and g) in accordance with statute, provide notices as specified in CPL sections 250.10, 250.20 and 250.30 (e.g., a demand, intentto introduce the evidence, etc.) as to the defendant's demand for exculpatory material, the People have acknowledged their continuing duty to disclose exculpatory material at the earliestpossible date upon its discovery (see, Brady vMaryland, 373 US 83 [1963]; Giglio v UnitedStates, 405 US 150 [1972]). In the event that the People are, or become, aware ofany 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 courtto permit an in camera inspection and determination as to whether the material must be disclosed to the defendant.
D. MOTION TO SUPPRESS STATEMENTS

The Court grants the Defendant's motionto the extentthat aHuntley 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 (l)(a) were involuntarily made by the Defendant within the meaning ofCPL 60.45 (see CPL 710.20 (3); CPL710.60 [3][b]; People v Weaver, 49 NY2d 1012 [1980]), obtained in violation ofDefendant's Sixth Amendmentright to counsel, and/or obtained in violation ofthe Defendant's Fourth Amendment rights (see Dunaway
vNew York, 442 US 200 [1979]).

D. MOTION TO SUPPRESS PHYSICAL EVIDENCE

This branch ofthe defendant's motion is granted solely to the extent ofconducting a Mapp hearing priorto trial to determine the propriety ofany search resulting in the seizure of evidence (see Mapp v Ohio, 367 US 643[1961]) including the results ofthe chemical test to determine, inter alia, whetherthe defendant expressly consented to the chemical test (see eg, People vAtkins, 85 NY2d 1007, 1008 [1995] and/or that it was administered in accord with VTL §1194 (2)(a) (see People vAtkins, 85 NY2d 1007, 1008 [1995]). Notably, the two hour limit set forth in VTL §1194(2)(a)(l)has no application where a defendant expressly and voluntarily consents to a test as opposed to where a defendant is deemed to have consented (People vElysee, 12 NY3d 100, 105 [2009])1•Inthe eventthe court finds that the defendant was deemed to have consented, the court will then considerwhetherthe 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 ofthe defendant's Fourth Amendment rights, including evidence seized from the defendant, the defendant's car and observations made ofhim (see DunawayvNew York, 442 US 200 [1979]).

1Any person who operates a motor vehicle in this state shall be deemed to have given consentto a chemical test of

.

. . breath, blood, urine, or saliva, for the purpose ofdetermining the alcoholic and/or drug content ofthe blood (People v Elysee, 12 NY3d 100, 105 [2009]).



### [* 5]6
H. MOTION RESERVING THE RIGHT TO FILE ADDITIONAL MOTIONS

Defendant's motion reserving the right to file additional motions is denied. Should the Defendant file any other motions that were not raised in his Omnibus motion, then they will need to be in compliance with CPL 255.20(3).

-

The foregoing constitutes the opinion, decision and order ofthis Court.

Dated: White Plains, New York May 

## II ,2022.

To:
HON. MIRIAM E. ROCAH

. District Attorney, Westchester County 111 Dr. Martin Luther King, Jr. Boulevard White Plains, NewYork 10601 BY: KEVIN K. JONES, ESQ Assistant District Attorney

CLARE J. DEGNAN, ESQ.' The Legal Aid Society ofWestchester County 150 Grand Street, Suite 100 White Plains, New York 10601 BY: JULIE 

### B. SCHECHTER, ESQ.



### [* 6]