### People v Disla 2022 NY Slip Op 34787(U) September 20, 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 OF WESTCHESTER 

### ------------------------------------------------------------------X THE PEOPLE OF THE STATE OFNEW YORK-againstAMELY DISLA, JEIDY RODRIGUEZ, RED PICHARDO and NICOLEBAEZ CRUZ

Defendant. 

### ------------------------------------------------------------------X FUFIDIO, J. DECISION & ORDER
r- I"lt!tretmentNo.: 22-70,~34 

# F1lED**~** SEP 2

## 0

# 2022 

# _Ji&,.

I)efendant, JEIDY RODRIGUEZ, having beenindicted for acting in concert withthe 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]); one count ofcriminal possession ofa controlled substance inthe third degree (Penal Law § 220.16[1]) and unlawful fleeing a police officer in a motor vehicle inthethird degree (Penal Law § 270.25) has filed an omnibus motion which consists ofa Notice ofMotion, an Affirmation in Support and a Memorandum ofLaw. Inresponse, the People have filed an Affirmation in Oppositiontogether 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

Defendantmoves 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 Gran<;! 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 commissionthereof(CPL §70.10[1]); 

### People vJennings, 69 NY2d 103 [1986]). "Inthe context ofa grandjuryproceeding, legal sufficiency means

### prima facie proofofthe crimes charged, not proofbeyond a reasonable doubt." 

### People vBello, 92 NY2d 523 (1998); 

### People vAckies, 79 AD3d 1050 (2nd Dept 2010). Inrendering 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 proofofeach element of the charged crimes and whetherthe grandjury couldrationally 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 sufficient to establish every element ofthe offenses charged (see CPL



### [* 1]§210.30[2]). 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 of the grandjurors was present during the presentation ofevidence and at the time the district attorney instructed the Grand Jury on the law, thatthe 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 [l51Dept 2002], 

### lv 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 & C. DISCOVERY ORDER
Defendant's motion for discovery is granted to the extent provided for in Criminal Procedure LawArticle 245 and/or already provided by the People. 

### Ifany items set forth in CPL Article 245 have not already been provided 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 Order upon completion oftheir obligations thereunder, ifthey have not already done so. ThePeople'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 remindedthat 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, 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 maketimely 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 their progeny under the United States and New York State Constitutions and by Rule 3.8(b) ofthe New York State Rules ofProfessional Conduct; and it is further ORDERED, that the 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 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 butis not limited to: a) Information that impeaches the credibility ofa testifying prosecution witness, including



### [* 2]

### (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 sowthat a witness has a motive to lie to inculpate the defendant, or a bias againstthe defendant or in favor ofthe complainant or the prosecution; and

. (v) information that tends to show impairment ofa witness's ability to perc.eive, recall, or recountrelevant events, including impairment resulting from mental or physical illness or substance abuse; b) Information that tends to exculpate, reduce the degree 9fan offense, or ~cupport a potential defense to a ~harged offense; · · c) Informati?n that tends to mitigate the degree ofthe defendant's culpability as to a charged offense, orto mitigate punishment; d) Information thattends 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 crime 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 ultim.ate decision on a suppression motion; and it is further ORDERED, thatthe District.Attorney and the.Assistant DistrictAttorney ~esponsible for· the case or any other agen{prosecuting the case is hereby advised ofhis/her duty to disclose favorable information whether or not such information is recorded in tangibleform and irrespective ofwhetherthe prosecutor credits the information; and it is further 1 

### ORDERED, that the DistrictAttorney and the Assistant District Attorney responsible for the case or any other agentresponsible for the prosecution ofthe case is dire~ted that favorable information must be timely disclosed in accordance withthe United States and Ne\v York State constitμtional 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 misdemeanorcase. Records ofajudgmentofconviction
or a pending crimin~l action ordinarily are discoverable within the time frame provided in CPL Article 245. Disclosures that pertain to a suppression hearing are presumptively "timely" ifthey
are made no laterthan 15 days before the scheduled hearing date; and it is further 1 

### ORDERED, that the District Attor~ey and the Assistant District Attorney ~esponsible for the case or any other agent responsible for the prosecution ofthe case is hereby reininded and informed that his/her obligationto disclose is a continuing one; and it further



### [* 3]ORDERED, notwithstanding the foregoing, that a prosecutormay apply for a protective order, whichmay 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 needfor disclosure. Only willful and deliberate conduct will constitute a violation ofthis Order orbe eligible to result in personal sanctions againstthe 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 aboutthe advantages and disadvantages ofany suchpleaoffer including the potential sentencing ranges that apply in the case; c) where applicable, insure the defendantreceives competent advise concerning immigration consequences as required under

### Padilla v. Kentucky, 559 US 356 [2010]; d) perform a reasonable investigation ofthe 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 professionaljudgmentnot to investigate a particularmatter; e) comply with the 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 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 earliestpossible date upon its discovery 

### (see, BradyvMaryland, 373 US 83 [1963]; 

### Giglio v UnitedStates, 405 US 150 [1972]). Inthe event that the People are, or become, aware ofany material which is arguably exculpatory and they are notwilling 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 whetherthe 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'smotion to the extentthat aHuntley 

### 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 Weaver, 

### 49 NY2d 1012 [1980]), obtained in violation ofDefendant's Sixth Amendment right to counsel, and/or obtained in vioiation ofthe Defendant's Fourth Amendment rights (see Dunaway
vNew York, 

### 442 US 200 [1979]).

·Regarding the Defendant'smotion to preclude any unnoticed statements, his motion is denied as premature. 

### Ifthat issue becomes ripe, the People will have to show compliance with CPL 710.30, if, in fact, they intend to use any previously unnoticed stateme~t that would have required prior notice.


### I. MOTION FORSANDOVALIVENTIMIGLIAIMOLINEUXHEARING


### Granted, solelyto the extentthatSandoval/Ventimiglia/Molineux

### hearings, 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, asthe case may be for each act or acts, the intendeduse (impeachment or substantiveproof) for which the act oracts will be offered; and II. Defendant, at the ordered hearing, mustthen 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 with CPL 255.20(3). ·

Dated: The foregoing constitutes the opinion, decision and order ofthis Court.
White Plains, New York September ~O , 2022



### [* 5]To:
HON. MIRIAM E. ROCAH District Attorney, Westchester County 111 Dr. Martin Luther King, Jr. Boulevard White Plains, NewYork 10601 BY:

. RACHEL EHRHARDT, ESQ Assistant District Attorney

CONORMcNAMARA, ESQ. Attorney for the Defendant 299Broadway, Suite 1400 New York, New York 10007



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