### 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 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 OFWESTCHESTER 

### ------------------.-----------------------------------------------X THE PEOPLE OF THE ST~-E--GF~EW YORK-againstAMELY DISLA,

. JEIDY RODRIGUEZ,

RED PICHARDO and NICOLE BAEZ CRUZ 

## FILED

# ~ JUL 28 2022

TIMOTI-IYC. IOONI COUNTYCt.ERK COUKTYOFWESTOiESTER

Defendant. 

### ------------------------------------------------------------------X FUFIDIO, J. DECISION & ORDER IndictmentNo.: 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 ofcriminal possession ofa controlled substance in the first degree (Penal Law§ 220.21 [1]) and one count ofcriminal possession ofa controlled substance inthe third degree (Penal Law§ 220.16[1]) has filed ;m omnibus motion which consists ofa Notice ofMotion, an Affirmation in Support and a Memorandum ofLaw. Inresponse, the People have filed an Affirmation in Opposition together with a Memorandum ofLaw. Upon consideration ofthese papers, the stenographic transcript of the 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 pursuantto 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 Court has 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 that the defendant committed the 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 commissionthereof(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 Dept 2010). In rendering a determination, "[t]he reviewing court's inquiry is limitedto whetherthe facts, if proven, and the inferences that logically flow from those facts supply proofofeach element of the charged crimes and whether the grandjury 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 ofthe minutes reveals that the evidence presented, ifaccepted as true, would be legally sufficientto establish every element ofthe offenses charged (see CPL §210.30[2]). Withrespect to Defendant's claim thatthe Grand Jury proceeding was defective



### [* 1]within the meaning ofCPL §210.35, a review ofthe minutes supports a finding that a quorum of the grandjurorswas present during the presentation ofevidence and at the time the district 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], 

### Ivden 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 ofsuchportions ofthe Grand Jury minutes as have not already been disclosed pursuant to CPL Article 245 to the parties
was necessary_to assistthe Court. 

## 13, C & J. DISCOVERY ORDER Defendant's motion for discovery is granted to the extentprovided for in Criminal Procedure LawArticle 245 and/or already providedby the People. Ifany items set forth in CPL Article 245 have not already beenprovided to Defendant pursuantto 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 directedto 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 granted to the extentprovided for in Criminal Procedure LawArticle 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. Further, pursuantto Administrative Order 393/19, it is: ORDERED, thatthe 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 v Maryland, 373 US 83 [1963]; 

### Giglio v UnitedStates, 405 US 150 [1972]; 

### People vGeaslen, 54NY2d 510 [1981]; andtheirprogeny underthe United States and New York State Constitutions and b)' Rule 3.8(b) ofthe New York State Rules ofProfessional Conduct; and it is further ORDERED, thatthe District Attorney and the Assistant District Attorney 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 onthe government's behalfinthe 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 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



### [* 2]

### (i) benefits, promises, or inducements, express ortacit, 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 sowthat a witness has a motive to lie to inculpate the defendant, or abias against the defendant or in favor ofthe complainant orthe prosecution; and (v) information that tends to showimpairment ofa witness's ability to perceive, recall, or recount relevant events, including impairment resulting from mental orphysical illness or substance abuse; b) Information thattends to exculpate, reduce the degree ofan offense, or scupport a

·potential defense to a charged offense; c) Information that tends 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 defendantby a witness to a charged cri_me or an identification or other evidence implicating another person in a mannerthat tends to cast doubt onthe 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 agentprosecuting 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 ariy other agent responsible for the prosecution ofthe 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 oftrial in a felony case and 15 days before commencement oftrial in a misdemeanor case. Records ofajudgment ofconviction
or a pending criminal action ordinarily are discoverable within the time frame provided in CPL Article 245. Disclosures that pertain to a suppressionhearing 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 or any other agent responsible for theprosecution ofthe case is.hereby reminded and informed that his/her obligation to disclose is a continuing one; and it further•



### [* 3]ORDERED, notwithstanding the foregoing, that a prosecutormay 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 in personal 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 in this case; and b) timely communicate any and all pleaoffers to the defendant and to provide him/her with reasonable advice about the advantages and disadvantages ofany such pleaoffer 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 ofthe facts and the lawpertinentto 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 professionaljudgmentnotto investigate aparticularmatter;

. . e) comply withthe requirements ofthe New York 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; 

### 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, 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 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 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 ofany search resulting in the seizure ofproperty 

### (see, Mapp v Ohio, 367 US 643 [1961]) and whether any evidence was



### [* 4]obtained in violation ofthe defendant'sFourthAmendmentrights 

### (see, DunawayvNew York, 442 

## us 200 [1979]).

E. MOTION TO SUPPRESS STATEMENTS
The Court grants the Defendant's motionto the extentthat a

### Huntley hearing shall be held priorto trial to determine whether any statements allegedly made by the Defendant, which have been noticed by the People pursuantto CPL 710.30 (l)(a) were involuntarily made by the Defendant withinthe meaning ofCPL 60.45 

### (see CPL 710.20 (3); CPL 710.60 [3][b]; 

### People v We_aver, 49 NY2d 1012 [1980]), obtained in violation ofDefendant's Sixth Amendment right to counsel, and/or obtained in violation ofthe Defendant's Fourth Amendmentrights 

### (see Dunaway vNew York, 442 US 200 [1979]).
F. MOTION TO STRIKE 710.30 IDENTIFICATIONNOTICES
The motionto strike is ·dismissed as moot. The People did not serve any identification notices onthe 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 allegedto have acted in concert, are properlyjoinedin the same indictment (see, CPL_ §200.40 [l]). Where the proofagainst defendants is supplied by the same evidence, "only the most cogentreasons 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 " favorsjoinder, because it expedites thejudicialprocess, reduces court congestion, and avoids the necessity ofrecallingwitness

... " (People v. Mahboubian, 74 NY2d 174, 183). Nevertheless, or good cause shown, such as the fact that a defendant will be "unduly

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

(see, CPL §200.40 [1]). In orderto fairly evaluate whetherthe defendant will orwill not be unduly prejudiced by ajointtrial, decisions must first be rendered regarding the admissibility of any statement by the defendant's co-defendant as well as, ifadmissible, whether any such statement can be redacted. Further, consideration must be given as to whetherthe co-defendant intends to testify and whetherthe co-defendant's defense is antagonistic to the that ofthe within defendant. Accordingly, as the court is yetto 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 ajointtrial will result in unfair prejudice to him and substantially impairhis defense.



### [* 5]I. 

### MOTION.·FOR SANDOVALIVENTIMIGLIAIMOLINEUXHEARING 

### Granted, solely to the extentthatSandoval/Ventimiglia/Molineux

### hearings, as the casemay 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 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 intended use (impeachment or substantiveproof) for whichthe act or acts will be offered; and

.II. Defendant, at the ordered hearing, must then sustain his burden ofinforming the Court ofthe 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 ofthis 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 ofWestchester County 150 Grand Street, Suite 100 White Plains, New York 10601

. BY: NICHOLAS A. SPERANZA, ESQ.



### [* 6]