People v Disla

2022 NY Slip Op 34786(U)

July 26, 2022

County Court, Westchester County

Docket Number: Indictment No. 22-70534

Judge: George E. Fufidio

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publication.
COUNTY COURT: STATE OF NEW YORK. 

COUNTY OF WESTCHESTER 

------------------.-----------------------------------------------X 

THE PEOPLE OF THE ST~-E--GF~EW YORK 

-againstAMEL Y DISLA, 

. JEIDY RODRIGUEZ, 

RED PICHARDO and 

NICOLE BAEZ CRUZ 

FILED ~ 

JUL 2 8 2022 

TIMOTI-IY C. IOONI 

COUNTY Ct.ERK 

COUKTY OF WESTOiESTER 

Defendant. 

------------------------------------------------------------------X 

FUFIDIO, J. 

DECISION & ORDER 

Indictment No.: 22-70534 

Defendant, RED PICHARDO, having been indicted for acting in concert with the above 

named defendants on or about March 14, 2022 on one count of criminal possession of a 

controlled substance in the first degree (Penal Law§ 220.21 [1]) and one count of criminal 

possession of a controlled substance in the third degree (Penal Law§ 220.16[1]) has filed ;m 

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 this Court disposes of this motion as follows: 

A. MOTION TO INSPECT AND 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 NY2d 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 NY2d 523 (1998); People v Ackies, 79 AD3d 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 AD3c:l 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]). With respect to Defendant's claim that the Grand Jury proceeding was defective 

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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 NY2d 298 [1988]; People v Julius, 

300 AD2d 167 [1 st Dept 2002], Iv den 99 NY2d 655 [2003]). The Grand Jury was properly 

instructed (see People v Ca/bud, 49 NY2d 389 [1980] and People v. Valles, 62 NY2d 36 [1984]). 

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. 

13, C & J. DISCOVERY ORDER 

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 People are directed to file a Certification of Compliance with CPL · 

Article 245 and the instant Order upon completion of their obligations thereunder, if they have 

not already done so. The People's cross-motion for reciprocal discovery is likewise granted to 

the extent provided 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 of particulars 

by Defendant shall adequately inform Defendant of the substance of the alleged conduct, and in 

all respects comply with CPL Article 245 and §200.95, within 15 days of the date of the request. 

Further, 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 of information favorable to the defense as 

required by Brady v Maryland, 373 US 83 [1963]; Giglio v United States, 405 US 150 [1972]; 

People v Geaslen, 54 NY2d 510 [1981]; and their progeny under the United States and New 

York State Constitutions and b)' Rule 3.8(b) of the New York State Rules of Professional 

Conduct; and it is further 

ORDERED, that the District Attorney and the Assistant District Attorney responsible for 

the case or, if the matter is not being prosecuted by the District Attorney, the prosecuting agency 

and its assigned representatives, have a duty to learn of such favorable information that is known 

to others acting on the government's behalf in the case, including the police, and are therefore 

expected to con(er with investigative and prosecutorial personnel who acted in the case and to 

review all files which are directly related to the prosecution or investigation of this case. For 

purposes of this Order, favorable information can include but is not limited to: 

a) Information that impeaches the credibility of a testifying prosecution witness, 

including 

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(i) benefits, promises, or inducements, express or tacit, made to a witness by a law 

enforcement official or law enforcement victim services agency in connection with giving 

testimony or cooperating in the case; 

(ii) a witness's prior inconsistent statement, written or oral; 

(iii) a witness's prior convictions and uncharged criminal conduct; . 

(iv) information that tends to sow that a witness has a motive to lie to inculpate the 

defendant, or a bias against the defendant or in favor of the complainant or the prosecution; and 

(v) information that tends to show impairment of a witness's ability to perceive, recall, or 

recount relevant events, including impairment resulting from mental or physical illness or 

substance abuse; 

b) Information that tends to exculpate, reduce the degree of an offense, or scupport a 

· potential defense to a charged offense; 

c) Information that tends to mitigate the degree of the defendant's culpability as to a 

charged offense, or to mitigate punishment; 

d) Information that tends to undermine evidence of the defendant's identity as a. 

perpetrator of a charged crime; such as a non-identification of the defendant by a witness to a 

charged cri_me or an identification or other evidence implicating another person in a manner that 

tends to cast doubt on the defendant's guilt; and 

e) Information that could affect in the defendant's favor the ultimate decision on a 

suppression motion; and it is further 

ORDERED, that the District Attorney and the Assistant District Attorney responsible for 

the case or any other agent prosecuting the case is hereby advised of his/her duty to disclose 

favorable information whether or not such information is recorded in tangible form and 

irrespective of whether the prosecutor credits the information; and it is further 

ORDERED, that the District Attorney and the Assistant District Attorney responsible for 

the case or ariy other agent responsible for the prosecution of the case is directed·that favorable 

information must be timely disclosed in accordance with the United States and New York State 

constitutional standards, as well as CPL Article 245. Disclosures are presumptively "timely" if 

they are completed no later than 30 days before commencement of trial in a felony case and 15 

days before commencement of trial in a misdemeanor case. Records of a judgment of conviction 

or a pending criminal action ordinarily are discoverable within the time frame provided in CPL 

Article 245. Disclosures that pertain to a suppression hearing are presumptively "timely" if they 

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 or any other agent responsible for the prosecution of the case is.hereby reminded and 

informed that his/her obligation to disclose is a continuing one; and it further• 

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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 of this Order or be eligible to result in personal sanctions against the prosecutor; and it 

is further 

ORDERED, that counsel for the- defendant is required to: 

a) confer with the defendant about his/her case and is required to keep the defendant 

informed about all significant developments in this case; and 

b) timely communicate any and all plea offers to the defendant and to provide him/her 

with reasonable advice about the advantages and disadvantages of any such plea offer including 

the potential sentencing ranges that apply in the case; 

c) where applicable, insure the defendant receives competent advise concerning 

immigration consequences as required under Padilla v. Kentucky, 559 US 356 [2010]; 

d) perform a reasonable investigation of the facts and the law pertinent 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 

professional judgment not to investigate a particular matter; 

. . 

e) comply with the requirements of the New York State Rules of Professional Conduct 

regarding conflicts of interest, and when appropriate, timely notify the court of a possible 

conflict so that an inquiry may be undertaken or a ruling made; 

f) possess or acquire a reasonable knowledge and familiarity with criminal procedural 

and evidentiary law to 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, intent to 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 earliest possible date upon its discovery (see, Brady v Maryland, 373 

US 83 [1963]; Giglio v United States, 405 US 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. 

D. MOTION TO SUPPRESS PHYSICAL EVIDENCE 

The Court grants the Defendant's motion solely to the extent that Mapp and Dunaway 

hearings are directed to be held prior to trial to determine the propriety of any search resulting in 

the seizure of property (see, Mapp v Ohio, 367 US 643 [1961]) and whether any evidence was 

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obtained in violation of the defendant's Fourth Amendment rights (see, Dunaway v New York, 442 

us 200 [1979]). 

E. MOTION TO SUPPRESS STATEMENTS 

The Court grants the Defendant's motion 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 (l)(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 

We_aver, 49 NY2d 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 US 200 [1979]). 

F. MOTION TO STRIKE 710.30 IDENTIFICATION NOTICES 

The motion to strike is ·dismissed as moot. The People did not serve any identification 

notices on the Defendant. 

G. MOTION TO SUPPRESS IDENTIFICATION TESTIMONY 

CPL ARTICLE 710 

See Point F above. 

H. MOTION FOR SEVERANCE 

The defendant moves for a severance from his co-defendants. The defendant and his codefendants, who are alleged to have acted in concert, are properly joined in the same indictment 

(see, CPL_ §200.40 [l]). Where the proof against defendants is supplied by the same evidence, 

"only the most cogent reasons warrant a severance." (see, People v. Bornholdt, 33 NY2d 75, 87, 

cert. denied 416 US 95; see also, People v. Kevin Watts, 159 AD2d 740). Further, public policy 

strongly " favors joinder, because it expedites the judicial process, reduces court congestion, and 

avoids the necessity ofrecalling witness ... " (People v. Mahboubian, 74 NY2d 174, 183). 

Nevertheless, or good cause shown, such as the fact that a defendant will be "unduly 

· prejudiced by a joint trial", a defendant may be entitled to a severance from his co-defendant 

(see, CPL §200.40 [1]). In order to fairly evaluate whether the defendant will or will not be 

unduly prejudiced by a joint trial, decisions must first be rendered regarding the admissibility of 

any statement by the defendant's co-defendant as well as, if admissible, whether any such 

statement can be redacted. Further, consideration must be given as to whether the co-defendant 

intends to testify and whether the co-defendant's defense is antagonistic to the that of the within 

defendant. 

Accordingly, as the court is yet to reach and resolve the above addressed matters, the 

defendant's motion for a severance is· denied as premature with leave to renew and for the 

defendant to demonstrate, after the above matters have been resolved, that a joint trial will result 

in unfair prejudice to him and substantially impair his defense. 

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I. MOTION .·FOR SANDOVALIVENTIMIGLIAIMOLINEUXHEARING 

Granted, solely to the extent that Sandoval/Ventimiglia/Molineux hearings, as the case may 

be, shall be held immediately prior to 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 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 

. II. 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 AD2d 266 [2nd Dept. 1985]). 

F. 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 witμ CPL 255.20(3). 

' The foregoing constitutes the opinion, decision and order of this Court. 

Dated: 

To: 

White Plains, New York 

July /~ , 2022 

HON. MIRIAM E. ROCAH 

District Attorney, Westchester County 

111 Dr. Martin Luther King, Jr. Boulevard 

White Plains, New York 10601 

BY: 

RACHELEHRHARDT,ESQ 

Assistant District Attorney 

CLARE J. DEGNAN, ESQ. 

The Legal Aid Society of Westchester County 

150 Grand Street, Suite 100 

White Plains, New York 10601 . 

BY: NICHOLAS A. SPERANZA, ESQ. 

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