### People v Suarez 2022 NY Slip Op 34690(U) November 28, 2022 County Court, Westchester County Docket Number: Indictment No. 20-70271 Judge: Robert J. Prisco 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 THEPEOPLEOFTHESTATEOFrNEW~Jy<: · 

# . : ~•L

.

. .i. 

# ED -agamst- t , 

# :· DEC SANDRO SUAREZ, ·DECISION & 

### ORDER l

count ofBurglary in the Third Degree pursuant to Penal Law [PL] § 140.20 [Count One], one count ofGrand Larceny in the Third Degree pursuant to PL§ 155.35 (1) [Count Two], and one count of Criminal Possession of Stolen Property in the Third Degree pursuant to PL § 165.50 [Count Three]. The charges pertain to Defendant's alleged unlawful entry into the Verizon Store building located at 89 Pondfield Road, in the Village of Bronxville, and his alleged theft of property which had a value in excess of three-thousand dollars ($3,000.00). The offenses are

· alleged to have occurred at approximately 5:50 a.m., on October 9, 2019. On July 11, 2022, Defendant was arraigned by this Court on the charges contained in Indictment Number 20-70271. Attachedto the indictment is the People's Demand for aNotice of · Alibi pursuant to Criminal Procedure Law [CPL] 

### §250.20. On July 13, 2022, the People served and filed, via email, a CPL 

### § 710.30 (1) (a) Notice regarding the People's intent to offer evidence ofstatements allegedly made by the defendant to a member or'the Bronxville Police Department,l and Discovery Package Transmittal Notices from the Westchester County District Attorney's Office which delineate the date, time and method ·of evidentiary disclosure. During a court appearance onJuly 29, 2022, the People·served and filed aNotice 

### ofMotion for the Taking ofBuccal Cell Samples, an Affirmation in Support ofthe Taking ofBuccal Cell**~** The CPL § 710.30 (!) (a) notice pertains to an electronically recorded oral statement that was allegedly made by Defendant at the Bronxville Police Department located at 200 Pondfield Road, in the Village of Bronxville, at approximately 8:36 p.rri.; on October 10, 2019. · ·

1 

# .I [* 1]

### Samples, and. a Memorandum ofLaw seeking an Order "requiring the defendant to permit the taking ofDNA samples from his body viabuccal cell swabs," pursuant to CPL§ 245.40 (1) 

### (e). On August 12, 2022, the People served and filed a Certificate ofCompliance pursuant to CPL § 245.50 (1),2 

### with an attached "Discovery Disclosure Index" that identifies the items and materials that have reportedly been disclosed or provided to defense counsel. Also attached to the Certificate of Compliance are Discovery Package Transmittal Notices from the Westchester County DistrictAttorney's Office which delineatethe dates, times·and methods ofsuchdisclosures and a Westchester County Department ofLaboratories & 

### Research Static Materials Discovery Disclosure pursuant to CPL·§ 245.20 (1) (f), 

### G), and (s). Within the People's Certificate of Compliance is a "Statement of Readiness," wherein the People state that they "confirm and
announce their readiness for trial on all counts charged." The Court is also in receipt of the

. People's Demand for Reciprocal Discovery pursuant to CPL§ 245.20 (4). OnAugust 30, 2022, Defendantfiled aNotice ofPre-Trial Motions pursuantto CPL Article 255 (hereinafter "Notice ofMotion"), an Attorney's Affirmation, and a Memorandum ofLaw

. 

### . seeking various forms ofjudicial intervention and relief Defendant also filed an Affirmation in Opposition to the People's Motion for the Taking ofBuccal Cell Samples. On September 12, 2022, this Court received the People's Affirmation in Opposition and Memorandum ofLaw in response to Defendant's motion for omnibus relief. The People also filed
a Notice of Cross'Motion to Amend Indictment (hereinafter "Notice· of_ Cross Motion"), an Affirmation in SupportofCross Motionto Amend Indictment (hereinafter "Affirmationin Support ofCross Motion), and a Memorandum ofLaw. The Court is also in receipt ofan unredacted certified copy ofthe stenographic transcript of the Grand Jury proceeding dated February 26, 2020, an unredacted certified copy of the · stenographic transcript ofthe instructions onthe law dated March 3, 2020, and copies ofthe Grand Jury exhibits that were received in evidence. The Court has further been provided with a Search Warrant Affidavit, a Search Warrant Order, an Amended Search Warrant Affidavit, and an Amended Search Warrant Ord~r.

2The Court is also in receipt ofa Discovery Checklist, aDiscovery Addendum pursuantto CPL §§ 245.l0and 245.20, aCertificate ofCompliance pursuant to CPL§ 245.50 (I), and aReciprocal Discovery Demand, all filed in Bronxville. Village Court on February 4, 2020.

2



### [* 2]

### After consideration of the above referenced submissions and the aforementioned unredacted certified stenographic transcripts, the Court decides Defendant's Motion as follows:
1. 

### MOTION TO AMEND INDICTMENT NUMBER20-70271. Citing CPL § 200.70 (1), the People cross move to amend "count one of Indictment Number [20-70271] to reflect the added language of 'and unlawfully' for which evidence was presented and voted upon by the grandjury" (see Page 1ofthe People's Notice ofCross Motion). Specifically, the People contend that the purpose of the amendment is to correct a "clerical oversight" and that such correction does not change the theory ofthe prosecution since the People includedthe language "andunlawfully" inthetestimony and charge to the GrandJury for Burglary in the Third Degree as set forth under Count One ofthe indictment (see Point I, Page 1, ofthe People's Memorandum ofLaw). I 

### Pursuant to CPL§ 200.70 (I), 

### ':a trial court may permit an indictment to be amended with ·

·respect to defects, errors or variances from the proofrelating to (the] matters ofform, time, place,

names ofpersons and the like" 

### (People vBloome, 205 AD3d 1045, 1047 [2d Dept2022], 

### iv. denied 38 NY3d 1132 (2022J; 

### see People v Solomon, 203 AD3d 1468, 1470 [3d De.pt 2022]; 

### People v Winston, 205 AD3d 32, 39 [1st Dept 2022]; 

### People vMcLean, 170 AD3d 1196, 1197-1198 [2d Dept2019]; 

### People vLaPetina, 34 AD3d 836, 838-839 (2d Dept2006], 

### aff'd9NY3d 854 (2007]). However, an indictment may not be amended to "change the theory or theories ofthe prosecution
as reflected_in the evidence before the grandjury

... or otherwise tend to prejudice the defendant
on the merits" 

### (People v Winston, 205 AD3d at 39; 

### People v Taylor, 202 AD3d 1461, 1461 (4th Dept2022]; 

### People vMcLean, 170 AD3d at 1197-1198; 

### People vGuzman, 153 AD3d 1273, 1275- 1276 (2d Dept 2017]; 

### People 

## v Elie, 110 AD3d 1003, 1005 (2d Dept 2013], 

### iv. denied 22 NY3d 1040 [2013]; 

### People 

# v LaPetina, 34 AD3d at 838-839; 

### People· v Massaro, 8AD3d 408, 408 [2d Dept 2004], 

### l.v. denied 3NY3d 678 (2004]; 

### People vLuna, 270 AD2d 501, 502 [2d Dept 2000], 

### Iv. denied95 NY2d 799 [2000]; CPL§ 200.70 (1)). 

### Further, "an indictment may not 'be amended for the purpose ofcuring [a] failure thereofto charge or state

# an offense or (a] (l]egal insufficiency ofthe factual allegations"' 

### (People v-Solomon, 203 AD3d at 1470, quoting CPL§ 200.70 (2) (a) and (b); 

### see People vPlacido, 149 AD3d 1157, 1157'.1158 [3d Dept 2017]; 

### People v Ceballos, 98 AD2d 475, 477 [2d Dept 1984]) "or [a] misjoinder ofoffenses or defendants" 

### (People vMayo, 19

3



### [* 3]AD3d 710, :711-712 [3d Dept 2005]; 

### People v Ceballos, 98 AD2d at 477; CPL§ 200.70 (2) (c) and (d)). Here, the People's amendmentofthe indictmentto includethe word "unlawfully" does not change the theory ofthe prosecution ortend to prejudicethe defendantonthe merits. In reviewing the unredacted certified transcript ofthe law provided to· the Grand Jury on March 3, 2020_, the instructions conveyed the correct elements of-Burglary in the Third Degree. Further, while the prosecutor instructed the grandjurors on the term "Enter or remains unlawfully" pursuant to PL § 140.00 (5) without specifying the theory upon which they were proceeding, it is clear from the evidence presented that the People were proceeding under a theory ofunlawful entry 

### (Pe.ople v Green, 105 AD3d 611, 6i 1-612 [1st Dept2013], 

### lv.,denied21 NY3d 1015 [2013]), and "[w]hether [a] person [is] licensed orprivilegedto enter abuildingmay be provedby circumstantial evidence" 

### (People vHenry, 169 AD3d 1273, 1273 [3d Dept 2019], 

### Iv. denied 33 1'JY3d 1070 [2019], citing 

### People vBethune, 65 AD3d 749, 751 [3rd Dept 2009]; 

### see People vDaniels, 8 AD3d 1022, 1023 [4th Dept 2004]; 

### Matter ofTyshawn J., 304 AD2d 331,· 331 [1st Dept 2003]). Thus, "[t]he prosecutor's reading ofthe relevant statutory provisions was sufficient to enable the grand

### jury to determine whether [the crime ofBurglary in the ThirdDegree] was committedand whether legally sufficient evidence existed to establish the material elements ofthat crime" 

### (People v Green, 105 AD3d at 612; 

### People v Calbud, Inc. 49 NY2d 389, 394-396 [1980]; 

### People v Scott, 175 AD2d 625,626 [4th Dept 1991], 

### lv. denied78 NY2d 1130 [1991]). Accordingly, the People's cross motion is granted to the extentthat Count On_e is amened to reflect that "The Defendant, in the Village ofBronxville, County ofWestchester _and State of New York, on orabout October 9, 2019, did knowingly andunlawfully enter a buildingwith intent to commit a crime therein."


### 2. MOTION TO DISMISS INDICTMENT NUMBER 20-70271 FOR FACIAL
· INSUFFICIENCY.

.Citing CPL§ 210.25 (1), Defendantmoves to dismiss the indictment onthe ground that"it does not substantially conform to the requirements stated in [CPL] Section·200.50 (7) (a)

...[as] · [t]here is no plain and concise factual statement supporting every elementofthe offense(s) charged and Mr. Suarez' commissionthereofwith sufficientprecisionto clearly apprisehim ofthe conduct

4



### [* 4]

### which is the subject ofthe accusation" 

### (see Point A, Page 2, ofDefendant's Notice ofMotion and Point A, Page 1, ofDefendant's Memorandum ofLaw). In response, the People assert that Defendant's motion should be denied as the instant indictment provides facts that support every element ofthe offenses charged and "does so in the language ofthe statute" 

### (see Point A, Page 1, ofthe People's Memorandum ofLaw). "The essential purpose ofacriminal_indictment is to provide a defendant 'with fair notice ofthe accusations made against him, so that he will be able to prepare a defense"' 

### (People v Winston, 205 AD3d at 38, quoting 

### People v Iannone, 45 NY2d 589, 594 [1978]; 

### see People v Morris, .61 NY2d 290, 293 [1984]; 

### People v Williams, 132 AD3d 785, 785-786 [2d Dept 2015], 

### lv. denied 26 NY3d 1151 [2016], 

### recon. denied 27 NY3d 1009 [2016]; 

### People vAtta, 126 AD3d 713, 715 [2d Dept 2015], 

### lv. denied25 NY3d 1159 [2015]). "An

### indictment must.c:ontain 'aplain and concise factual statement in each count' which, without allegations of an evidentiary nature,
...asserts facts supporting every element of the offense charged and the defendant's

...commission thereofwith sufficientprecision to clearly apprise [him] ofthe conduct wh_ich is the subject ofthe accusation"' 

### (People vNunez-Garcia, 178 '.AD3d 1087, 1088 [2d Dept 2019], 

### lv. denied35 NY3d 943 [2020]), citing CPL§ 200.50 (7) (a); 

### see People v Grega, 72 NY2d 489,498 [1988]; 

### People vMorris, 61 NY2d at 293; 

### People vIannone, 45 NY2d at 598; 

### People v Rice, 172 AD3d 1616, 1617 [3d Dept 2019]; 

### _People v Singleton, 130 AD2d 598, 599 [2d Dept 1987], 

### aff'd72 NY2d 845 [1988]). Here, each ofthe .three (3) counts contained in Indictment Number 20-70271 contains a statementthat satisfies the requirements ofCPL 

### §200.50 (7) (a), the cases cited above, and further provides the date on which the conduct is alleged to have occurred 

### (see CPL §200.50 (6); 

### People
v Henry, 183 AD3d 607, 608 [2d Dept 2020]; 

### People v Atta, 126 AD3d_ at 715]). Accordingly, Defendant's motion to dismiss IndictmentNumber 20-70271 for facial insufficiency is denied.


### 3. MOTION FOR INSPECTION OF GRAND JURY MINUTES AND DISMISSAL OR I • 

### REDUCTION OF THE CHARGES CONTAINED IN INDICTMENT NUMBER 20-70271 DUE TO THE LEGAL INSUFFICIENCY OF THE EVIDENCE PRESENTED AND THE INSTRUCTIONS PROVIDED. Citing CPL Article 210, Defendant moves "for inspection ofthe Grand Jury minutes by the Court and subsequent to that inspection, for the·dismissal ofthe indictment orreduction ofthe

5



### [* 5]

### counts thereof, on the grounds that the evidence before the Grand Jury was not legally sufficient, and thatthe GrandJurors were not'properl)' instructed on the applicable law, and on lesserincluded offenses" (see 

### Point B, Page 2, of Defendant's Nptice of Motion and Point B, Pages 1-5, of Defend~t's Memorandum of Law). · Specifically, Defendant contends that the Grand Jury evidence was insufficientbecausethe testimony failedto showthatthe Yonkers PoliceDepartment · had probable cause to stop the vehicle and the People failed to provide sufficient evidence that

. ' 

### Defendant acted with the necessary criminal intent regarding the charge ofBurglary in the Third Degree (see 

### Pages 2-3 ofDefendant's Memorandum ofLaw). Defendant also contends that the People "failed to provide substantiation for the value of the items alleged to be stolen," that the testimony ofthe owner ofthe Verizon Store "was based
on mere·speculation about the value ofthe items lost" and, therefore, that the People did notprove the required elements ofvaluation as to the charges ofGrand Larceny in the Third Degree and Crimi1p~l Possession of Stolen Property in the Third Degree (see 

### Page 2 of Defendant's Memorandum ofLaw). In their response, the People consentto an.in-camera inspection ofthe Grand Jury minutes by the Court (see 

### Point B, Page 2, of the Pe·ople's Memorandum of Law), contend that the. indictment is supported by legally sufficient evidence (see 

### Point B, Pages·2-6, ofthe People's Memorandum ofLaw), and assert that "Defendant has failed to meet his high burden ofshowing the existence ofany error in the grandjury proceeding which rendered it defective" (see 

### Point B, Page 6, ofthe People's Memorandum_ofLaw). As to the value ofthe stolen items, the People contend that "[d]uring the course ofthe grandjury proceedings, the People elicited testimony from the owner ofthe Verizon Store about the specific items that were stolen and their value and nioved into evidence photographs ofthe stolen items recovered pursuant to the search warrant" (see 

### Point B, _Pages 3-4, ofthe People's· Memorandum ofLaw). The People averthat "[t]his evidence coupled withthe factthatthe average jurorhas knowledge as to what cellular devices cost given the mainstream use ofcellular devices in today's society provides a sufficient bases ofknowledge for the grandjurors to ascertain the

. 

# . . 

### value ofthe stolen items" (see 

### Point B, Page 4, ofthe People's Memorandum ofLaw).

6'



### [* 6]The People further contend that the defendant was lawfully arrested and that they offered sufficient proofofhis criminal intent with respect to.the Burglary in the Third Degree count 

### (see · Point B, Pages 4-6, ofthe People's Memorandum ofLaw). The Court has conducted an in-camera review of the entirety of the Grand Jury proceedings, having examined the unredacted certified copies ofthe stenographic transcripts of the Grand Jury proceeding dated February 26, 2020 and the instructions on the law dated March 3, 2020.On February 26, 2020, prior to the commencement of the given sworn testimony, the

·People specifically inquired of and confirmed with the foreperson that twenty-two (22) grand jurors were present. Prior to instructing the grandjurors on the applicable law on March 3, 2020, the People.confirmed with the foreperson that those twenty-two (22) grandjurors were present throughout-the presentation ofthe case. These measures by the People satisfy this Court that the twenty-two (22) grandjurors who deliberated and voted on the charges contained in Indictment Number 20-70271 were present throughout the one-day presentation ofthe case. "Courts assessing the sufficiency of the evidence before a grand jury must evaluate 'wheth~r the evidence, viewed most favorably to the People, ifunexplained and uncontradictedand deferring all questions as to the weight or quality ofthe evidence-\.\'.ouldwarrantconviction'" 

### (People vMills, 1NY3d269, 274-275 [2003], quoting

### People v Carroll, 93 NY2d564,568 [1999];


### see People vBello, 92 NY2d 523, 525 [1998]; 

### People vJensen, 86 NY2d 248, 251 [1995]; 

### People
vJennings, 69 NY2d 103, 114 [1986]; 

### People v Booker, 164 AD3d 819, 820 [2d Dept 2018]; 

### People vHulsen, 150 AD3d 1261, 1262 [2d Dept 2017], 

### lv. denied30 NY3d 950 [2017]; 

### People
v Flowers, .138 AD3d 1138, 1139 [2d Dept 2016]). Legally sufficient evidence is "competent evidence which, ifaccepted as true; would establish every element ofan offense.charged and the defendant's commission thereof' (CPL§ 70.10 (1); 

### see People vMills, l NY3d at 274; 

### People v

.Franov, 146 AD3d 978, 979 [2d Dept 2017];

### People v Wisey, 133 AD3d 799,800 [2d Dept 2015]; 

### People vRyan 125 AD3d 695, 696 [2d Dept 2015], 

### lv. denied 25 NY3d 1077 [2015]). "In the context of a Grand Jury proceeding, legal sufficiency means prima facie proof of the crimes charged, not proofbeyond a reasonable.doubt" 

### (People v Jessup, 90 AD3d 782, 783 [2d ·Dept 2011], quoting 

### People v-Bello, 92 NY2d at 526; 

### see People vRyan, 125 AD3d at 696; 

### People v

. 

## . Woodson, 105 AD3d 782, 783 [2d Dept 2013]). This Court's inquiry is "limited to 'whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every

7



### [* 7]element ofthe charged crimes,' and whether 'theGrand

### Jury couldrationally have drawnthe guilty inference"'

### (People vBello, 92 NY2d at 526, quoting

### People vDeegan, 69NY2d 976,979 [1987];


### see People vPino, 162 AD3d 910, 911 [2d Dept 2018]).

_ Here, the evidence presented to the Grand 

### Jury, when viewed in the light most favorable to the People, was l~gally sufficient to establish and support the charge ofBurglary in the_ Third Degree as set forth in Count One ofIndictment Number 20-70271.

_ However, as to the charges ofGrandLarceny in the Third Degree and Criminal Possession of Stolen Property in the Third Degree, as set forth in Counts Two and Three, respectively, the People failed to prove that the value ofthe property that was allegedly stolen and possessed by Defendant exceeds three-thousand dollars ($3,000.00). Pursuant to PL§ 155.20 (1), "value means the market value ofthe property at the time and place ofthe crime, or if such cannot be .satisfactorily ascertained, the cost ofreplacement ofthe property within a reasonable time after the crime." "Any person who testifies as to the value ofan item 'must provide a basis of knowledge for his [or her] .statement of value before it can be accepted as legally sufficient evidence ofsuch value"' 

### (People vSutherland, 102 AD3d 897, 898 [2d Dept2013], quoting

### People vLopez, 79NY2d402,"404 [1992];

### see People vPiasta, 207 AD3d 1054, 1058 [4th Dept 2022], 

### lv. denied 38 NY3d 1190 [2022]; 

### People v Box, 181 _AD3d 1238, 1241 [4th Dept 2020], 

### lv. ·denied 35 NY3d 1025 [2020]; 

### People v Slack, 137 AD3d 1°568, 1569 [4th Dept 2016],

# Iv. denied27 NY3d 1139 [2016]). '"Conclusory statements and rough estimates ofvalue' that are unsupported by a basis ofknowledge are insufficient" 

### (People vSutherland, 102 AD3d at_ 899, quoting 

### People vLoomis, 56 AD3d 1046, 1047 [3d Dept 2008]; 

### see People vBox, 181 AD3d at 1241; 

### People vSlack, 137 AD3d at 1569; 

### People v Walker, 119 AD3d 1402, 1402- 1403 [4th Dept 2014]; 

### People vPallagi, 91 AD3d 1266, 1269 [4th Dept 2012]). Here, although the store owner testified regarding the items that were missing3 and estimatedthat "[t]he value [ofsuch items] was about $13,800" 

### (see Page 19, Line 1, ofGrand

### Jury Transcript dated March 3, 2020), he failed to provide a basis ofknowledge for his ~tatement and there was no other evidence as to the value ofthe stolen property 

### (see People vSutherland, 102 AD3d at 899). Thus, the People failed to meet their burden ofproving the required value element

3 The store owner aileged that the items that were stolen included six (6) iPho~e Ils, two (2) Samsung Note !Os, two (2) Samsung SlOs, one (1) Kyocera phone, two (2) iPad tablets, two (2) Verizon tablets, and three (3) Verizon Hums (see Page 18, Lines 19-23, ofGrand Jury Transcript dated March 3, 2020). ·
8



### [* 8]ofGrand Larceny in the Third Degree (PL 

### § 155.35) and Criminal Possession ofStolen Property in the Third Degree (PL § 165.50), to wit, a property value in excess ofthree-thousand dollars ($3,000.00). Notwithstanding the above, the evidence presented to the Grand Jury did establish the crimes ofPetit Larceny (PL § 155.25) and Criminal Possession of Stolen Property in the Fifth Degree (PL§ 165.40), as value is not an element thereof. A Grand Jury proceeding is "defective,"warranting dismissal ofthe indictment, only where the "proceeding

... fails to conform to the requirements ofCPL Article 190 to such degree that the integrity thereofis impaired and prejudice to the defendant may result" (CPL§ 210.35 (5); 

### see People vArevalo, 172 AD3d 891,892 [2d Dept 2019];

### People v Williams, 171 AD3d 804,805 [2d Dept 2019]). Dismissal ofan indictment under CPL § 210.35 (5) is an "exceptional remedy" that "should

... be limited to those instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the Grand Jury'' 

### (People vHuston, 88 NY2d 400, 409 [1996]; 

### see People v Williams, 171 AD3d at 805; 

### People vBurch, 108 AD3d 679, 680 [2d Dept 2013], 

### lv. denied22 NY3d 1087 [2014]; 

### People v Thompson, 81 AD3d 670,671 [2d Dept 2011], 

### aff'd22 NY3d 687 [2014]). Here, the Court finds that no such wrongdoing, conduct
or errors occurred. Further, while a prosecutor is required to instruct the grandjury on the law with respect

### to matters before it 

### (People v Valles, 62 NY2d 36, 38 [1984]; 

### People v Tunit, 149 AD3d 1110, 1110 [2d Dept 2017]; 

### People vSamuels, 12 AD3d 695, 698 [2d Dept 2004]; 

### see CPL§_ 190.25 (6)), "a

. Grand Jury need not be instructed with the same degree ofprecision that is required when a petit jury is instructed on the law" 

### (People v Calbud, Inc., 49 NY2d at 394; 

### see People v Caracciola, 78 NY2d 1021, 1022 [1991]; 

### People vBatashure, 75 NY2d 306,311 [1990]; 

### People v Goetz, 68 NY2d 96, 115 [1986]; 

### People vValles 62 NY2d 36, 38 [1984]; 

### People v Tunit, 149 AD3d at 1110; 

### People vCastaldo, 146 AD3d 797, 798 [2d Dept 2017]; 

### People vBurch, 108 AD3d at 680; 

### People·

· vMalan:.Pomaeyna, 72 AD3d 988 [2d Dept 201O]). ·

### It is well settled that such instructions are

sufficient so long as they provide "enough information to enable [the grandjury] intelligently to decide whethera crimehasbeencommitted andto determine whetherthere exists legally sufficient evidence to establish the material elements ofthe crime" 

### (People v Calbud, Inc., 49 NY2d at 394- 395; 

### see People v Valles 62 NY2d at 38; 

### People v Tunit, 149 AD3d at 1110-1111; 

### People v Patterson, 73 AD3d 1215, 1215 [2d Dept 2010], 

### lv. denied 15 NY3d 776 [2010];

### P~ople vMalan9



### [* 9]

### Pomaeyna, 72 AD3d at 988). After an in-camerareviewofthe unredacted certifiedcopies ofthe stenographictranscripts of the Grand Jury proceeding and the instructions on the law prnvided therein, this Court

.determines thatthe Grand Jury proceeding was not defective andthatthe instructions given during the presentation were legally sufficient and proper. Accordingly, for the reasons set forth above, Defendant's motion to dismiss or reduce the charge ofBurglary in the Third Degree is denied and his motion to dismiss or reduce the charges ofGrand Larceny in the Third Degree and Criminal Possession of Stolen Property in the Third Degree is granted to the extent that such counts are reduced to Petit Larceny and Criminal Possession ofStolen Property in the Fifth Degree, respectively.


### 4. MOTION FOR PRECLUSION OF DEFENDANT'S PRIOR CRIMES OR BAD ACTS; ASSOCIATED SANDOVAL 

### AND VENTIMIGLIA 

### HEARINGS. Relying on

### People vSandoval, 34 NY2d 371 [1974], and

### People v. Ventimiglia, 52 NY2d 350 [1981], Defendant moves for a pre-trial hearing "to determine the admissibility attrial for any purpose ofany and all alleged c·riminal convictions and/or criminal, ·vicious or immoral acts of defend~nt," and requests thatthe People notify him of"all specific instances ofdefendant's alleged prior uncharged criminal, vicious or immoral conduct ofwhich the prosecution has knowledge, and which the District Attorney intends to use at trial" 

### (see Point C, Pages 2-3, ofDefendant's Notice ofMotion and Point E, Pages 5-6, ofDefendant's Memorandum ofLaw). In .response, the People acknowledge their 

### Sandoval and 

### Ventimiglia obligations and consent to hearings on same if such disclosure is made 

### (see Point C, Page 9, of the .People's Memorandum ofLaw). The People also indicate that should they "seek to introduce defendant's priorbad acts on their direct case [pursuant to 

### People vMolineux, 168 NY 264 [1901]]; the People will inform defense counsel and the Court and.request ahearing before introducing such

### Molineux evidence" 

### (see Point C, Page 9, ofthe People's Memorandum ofLaw). CPL§245.20 (3) (a) provides, in substance and pertinentpart, that "[t]heprosecut.ion shall disclose to the defendant a list ofall misconduct and criminal acts ofthe defendant not charged in the indictment, which the pmsecution intends to use at trial for _purposes of impeaching the credibility ofthe defendant." To the extent that the People seek to use any ofDefendant's prior

10



### [* 10]acts ofmisconduct or criminality on their direct case as substantive proofofany material issue in the case, CPL§ 245.20 (3) (b) likewise obligates "[t]he prosecution [to} disclose to the defendant
a list ofall misconduct and criminal acts ofthe defendant not charged inthe indictment, which the prosecution intends to use at trial [for such purpose]." Lastly, CPL§ 245.20 (3) further requires that "the prosecution shall designate whether it intends to use each listed act for impeachment and/or as substantive proof" As the People.have concededly not yet disclosed to the defendant a list of his acts of misconduct and criminality which the prosecution intends to use at trial for impeaching his credibility or as substantive proofofany material issue in the case, nor designated their intended
use thereof, this Courtwill no.t orderthe requested

### Sandoval and 

### Ventimiglia hearings atthepresent time. Should the· People seek to use attrial any prior acts of miscqnduct or criminality ofthe defendant for CPL 

### § 245.20 (3) (a) or (b) purposes, they are directed to disclose to Defendant a list ofall such acts ofmisconduct and criminality and to d~signate the intended purpose ofeach listed act. Pursuant to CPL § 245.10 (1) (b), the People "shall perform [these] supplemental discovery obligations 

### as soon aspracticable but not later than fifteen (15) calendar days prior to the first scheduled trial date" (emphasis added). 

### Ifthe People do so, Defendant may renew his application to preclude the People's use ofsuch acts ofmisconduct orcriminality at trial or, in the alternative, request a hearing thereon to determine the admissibility thereof. 

### Ifthe People fail to do so, no use ofsuch acts will be permitted at trial.


### 5. MOTION TO SUPPRESS PHYSICAL EVIDENCE AND TO CONTROVERT SEARCH WARRANTS. Citing· CPL Articles 690 and 710,·Defendant moves to suppress "all evidence seized pursuant to a search warrant and [to controvert] the search warrant' 1 

### (see Point D, Page 3, of Defendant's Notice of Motion). Specifically, Defendant contends that the affidavits "fail to establish a nexus between [Defendant's] residence at 26 Yonkers Avenue, the Grey Mercedes Benz, the items illegally seized from [Defendant's] person as a result ofthe unlawful stop and the i~ems seized from the BMW X3" 

### (see Point D, Page 6; ofDefendant's.Memorandum ofLaw).

·Defendant further contends that the search warrant application was overbroad as such request did not indicate that the police·were authorized to retrieve SIM Cards and SIM Card Starter Kits and thatthe police failed to listthe make and model ofthe cellphones allegedly takenfromthe Verizon

11



### [* 11]

### Store in their application (see 

### Point D, Page 7, ofDefendant's Memorandum ofLaw). In the alternative, Defendant seeks a hearing on this issue (see 

### Point D, Page 7, of Defendant's Memorandum ofLaw). Citing Mapp v Ohio, 

### 367 US 643 [1961], and Dunaway v New York, 

### 442 US 200 [1979], Defendant also moves to suppress and prohibit "the use at trial or any hearing on this matter ofall evidence, including all physical evidence, and any statements in that such evidence and property
.

. . 

### was unlawfully seized and was the fruit ofan unlawful arrest, as defendant was arrested without · probable cause" (see 

### Point E, Page 3, ofDefendant's Notice ofMotion and Point E, Page 7, of Defendant's Memorandum of Law). Specifically, Defendant contends that "a pair of keys belonging to the Mercedes Benz" and found on his person were recovered without his consent, and that the police conducted an "unlawful search ofthe BMW_ X3," during which they found cellular devices in the back ofthe vehicle (see 

### Point E, Pages 8-9, ofDefendant's Memorandum of Law). In the alternative, Defendant seeks "a hearing to determine w~ether defendant was arrested with probable cause and the admissibility ofsuch physical evidence including the bladed knife alleged to have been found on [his] person" (see 

### Point E, Page 3, ofDefendant's Notice of Motion). In

### response, the People allege thatDefendant's motionto controvertthe searchwarrantand to suppress the evidence seized should be denied since the search warrant was supported by probable cause and is sufficiently specific and not overbroad (see 

### Point D, Pages 11-15, ofthe

.People's M_emorandum ofLaw). 4 

### The People further contend that the defendant does not have

s~anding to contestthe search ofthe 2016 Mercedes Benz orthe BMW X3 (see 

### PointD, Pages 1 O., 11, and Point E, Pcige 20, ofthe People's Memorandum ofLaw). Finally, the People aver that Defondant's motionto suppress physical evidence shouldbe denied as the Defendantwas lawfully arrested and that, should the Court find that Defendant has standing, the items recovered from the Mercedes Benz and the BMW X3 were properly recovered pursuant to an inventory search in

. . 

### accordance with standard procedure or the automobile exception to the warrant requirement (see

4 The People state that on October II, 2019, "an amended warrant application was submitted by a member ofthe

. Village ofBronxville Police Department when itwas discovered, upon the execution of thepreviously signedwarrant order, thatdefendantresides in Apartment2R at 26 Yonkers Avenue and not Apartm~nt4L as defendant initially told police" (emphasis added) (s·ee Point D, Page 14, ofthe People's Memorandum ofLaw). The Court presumes from the emphasized language above thatboth asearch warrant and an amended search warrantwere executed in connection with this matter. · 12



### [* 12]Point E, Pages 16-22, ofthe People's Memorandum ~fLaw). · A court reviewing a search warrant is required t? give the issuing court "great deference"

.in determining whetherthere was probable cause, as a presumption ofvalidity attaches to a search warrant approved by a. magistrate who reviews the underlying application and finds sufficient evidence ofprobable cause 

### (People v Castillo, 80 NY2d 578, 585 (1992], 

### cert. denied 507 U.S. 1033 [1993]; 

### see People v Griminger, 71 NY2d 635 

### [1988];_People vHanlon, 36 NY2d 549,558 [1975]; 

### People v Crupi, 172 AD3d 898 [2d Dept 2019], 

### lv.- denied 34 NY3d 950 [2019]; 

### People v Calise, 256 AD2d 64, 65 [1st Dept 1998], 

### iv. denied93 NY2d 851 [1999]). To establish probable cause, "a search warrant application must provide the magistrate with information sufficient tosupport a reasonable beliefthat evidence ofillegal activity will be present at the specific time and place" 

### (People v Edwards, 69 NY2d 814,816 [1987]; 

### see People v Bigelow, 66 NY2d 417,423 [1985]; 

### People v Lambey, 176 AD3d 1232, 1233 [2d Dept 2019]; 

### People v Murray, 136 AD3d 714 [2d Dept 2016], 

### Iv
..denied 27 NY3d 1003 [2016] 

### People vLeggio, 84 AD3d 1116, 1117 [2d Dept 2011]; 

### People v Griffin, 28 AD3d 578, 578-579 [2d Dept 2006], 

### lv. denied 7 NY3d 789 [2006]; 

### People v Corr, 28 AD3d 574, 575 [2d Dept 2006], 

### lv. denied 7 NY3d 787 [2006]). 

### "In reviewingthe validity ofa searchwarrantto determinewhetheritw·as supportedby probable cause or whether it contained a sufficiently particular description of its target, the critical facts and circumstances for the reviewing court are those which were made knowntotheissuingMagistrate at the time the warrant application was determined" 

### (People v Gordon, 36NY3_d 420, 429 [2021], quoting 

### People vNieves, 36 NY2d 396, 402 [1975]; 

### see People vPitcher, 199 AD3d 1_493, 1494 [ 4th Dept 2021]). Defendant's motion for suppression of physical evidence is granted to the extent that hearings pursuant to 

### Mapp v Ohio, 367 

### US 643 [1961], and 

### Dunaway vNew York, 442 

### US 200 [1979], will be conductedto determine whether Defendanthas standing to contestthe sefilches and

. .

. seizures at issue 

### (People vRamirez-Portoreal, 88 NY2d 99, 108 [1996]; 

### see People vLeach, 21

NY3d 969, 971 [2013]; 

### People v Wesley, 73 NY2d 351, 358-359 [1989]; 

### People v Kluge, 180 AD3d 705, 707 [2d Dept 2020];

### feople vSantiago, 176 AD3d 744, 745 [2d Dept-2019]; 

### People v McCullum, 159 AD3d 8, 12-13 [2d Dept 2018], 

### aff'd 34 NY3d 1022 [2019]) and, ifso, whether

·· the search warrant and the amended search warrant described the itemsto be seized with sufficient particularity so as to not authorize a general, exploratory search 

### (People v Fernandez, 2022 NY

13



### [* 13]

### Slip Op 06137 [2d Dept 2022]; 

### see People vNieves, 36 NY2d at 401-402; 

### People v Williams, 187 AD3d 1222, 1223-1224 [2d Dept2020]; 

### People vMelamed,178 AD3d 1079, 1081-1082 [2dDept 2019]).



### 6. MOTION TO SUPPRESS STATEMENTS. Citing CPL Ar:ticle 710, the Fourth, Fifth; Sixth and Fourteenth Amendments ofthe United States Constitution and Article I, Section 6, ofthe New York State Constitution,Defendantmoves to suppress any statements allegedly made by him as violative ofhis rights 

### (see Point F, Page 4, ofDefendant's Notice ofMotion and Point F, Page 10, ofDefendant's Memorandum ofLaw). Specifically, Defendant contends. that such statements were involuntarily made and "asserts that his initial arrest was unconstitutional and madewithoutthe requisite probable cause" 

### (see Point F, Page 10, ofDefendant's M(:::monindum ofLaw). In the alte_mative, Defendant "requests aHuntley hearing

...to aid the Court in determining the issues raised" 

### (see Point F, Page 10, ofDefendant's Memorandum ofLaw). In response, the People conclude their counter arguments 

### by stating that, "[a]s no conduct requiring suppression occurred prior to or during defendant's statement[s] and his statem~nt[s] [were] entirely voluntary, after a Huntley 

### hearing, defendant's mot.ion to suppress his statements shouldbe denied" 

### (see Point F, Page 28, ofthe People's Memorandum ofLaw). • As the People have impliedly' consented to a hearing to address Defendant's claims,

·Defendant's motionto suppress statements is grantedto the extentthathearings pursuantto 

### People
v Huntley, 

### 15 NY2d 72 [1965], and Dunaway v New York, 

### 442 US 200(1979], will be conducted to determine the voluntariness and admissibility ofthe noticed statements.
7. 

### MOTION FOR DISCOVERY COMPLIANCE AND TO DEEM THE CERTIFICATE OF COMPLIANCE INVALID AND THE STATEMENT OF READINESS ILLUSORY. Citing CPL 

### § 245.20, Defendant contends that the People have not fully complied with theirdiscovery obligations and, thus, he requests thatthe Court_deemtheCertificateofCompliance dated August 12, 2022 invalid and the Statement ofReadiness.illusory 

### (see Point G,-Pages 12-13,

14



### [* 14]ofDefendant's Memorandum ofLaw). 5 Specifically, Defendant avers that the People have failed to provide the-Search Warrant R,eturn pursuantto CPL§ 690.50 (4) and (5), photographs of"ared bin [that] was recovered [and] abandoned. near 26 Yonkers Avenue," Grand Jury exhibits, a pedestrian 911 call, and documents pertaining to his "Yonkers arrest" 

### (see Point G, Pages 12-13, of Defendant's Memorandum ofLaw). Defendant also claims that the "CPL § 245.20 (1) (k) disclosures for the officers involved are outdated" and incomplete 

### (see Point G, Page 13, of Defendant's Memorandum ofLaw). In response, the People assert that; because they "certified their compliance with the discovery demands ofCPL [§] 245.20 onAugust 12, 2022, whenthe People filed their Certificate ofCompliance (CPL [§] 245.50 

### (l),

...[the] defendant's argument that the People have failed to comply with the statute is moot" 

### (see Point G, Page 29, ofthe People's Memorandum ofLaw). The People have also provided the Court with· descriptions of the additional materials and information that have allegedly been provided to Defendant and the dates upon which such

.disclosure allegedly took place pursuant to the People's continuing duty to do so pursuant to CPL

§ 245.60 

### (see Point G, Pages 30-36, ofthe People's Memorandum ofLaw). Specifically, the People contend that all CPL § 245.20 (1) (k) materials were provided to Defendant on August 12, 2022,6 the photographic and surveillance video exhibits ofthe Grand Jury proceeding were provided to Defendant on February 4, 5, and 20, 2020, and an. email dated August 12, 2022 was sent to Defendant which disclosed that the original call was reported by a member ofthe Village ofBronxville Police Department and not a pedestrian, as initially believed 

### (see Point G, Page 35, ofthe People's Memorandum ofLaw). The People further contend that although the search warrant return· has not y~t been provided, they did provide Defendant with "a

5Citing CPL Article 245, Defendant also moves "to invalidate the prior Certificate ofCompliance [dated February 4, 2020 filed in Bronxville Village Court] and Statement ofReadiness as illusory for failure ofthe People to provide the grandjury minutes" (see Point G, Page 4, ofDefendant's Notice ofMotion and Point G, Page 11; ofDefendant's Memorandum ofLaw). As local court does not havejurisdiction over felony matters_and Defendant concedes that "the People cannot proclaim actual readiness in local court" (see Point G, Page ·11, ofDefendant's Memorandum of Law), such argument nee~ not be addressed. The Court notes that the Discovery Disclosure Index attached to the Certificate'ofCompliance dated August 12, 2022, indicates that the "Grand Jury Testimony" was provided to defense counsel via the "PRO Discovery Portal" on "7/13/2020." ·
6 The People state this includes "(I)(k) questionnaires, office memoranda, chi'il suit information, and prior law enforcement experience documents" (see PointG, Page 34, ofthe People's Memorandum ofLaw). ·



### 15



### [* 15]photograph of a warrant receipt on February 4, 2020 and.February 20, 2020," and that all photographs related to the Verizon Store burglary that are in the People's possession were also provided to Defendanton such dates 

### (see Point G, Page 35, ofthe People's Memorandum ofLaw). As to the red box photograph, the· People claim that "they cannot provide a document that does not exist," that the Discovery Disclosure Index attached to the People's Certificate of Compliance indicates that "defendant cap. inspect the red box upon contacting the assigned Assistant District Attorney" and that, "[t]o date, no request for such inspection has been made by the defendant" 

### (see Point G, Page 35, ofthe People's Memorandum ofLaw). Finally, as to the outsta!lding·discovery on the Yonkers matter, the People aver that they provided "all discovery items within their possession

...on August 1 

### O; .2022 and subsequently on September 6, 2022" 

### (see Point G, Page 35, ofthe People's Memorandum ofLaw).7 Pursuant to CPL § 245.20 (1), the People must automatically disclose to defendant "all items and informationthatrelate to the subject matterofthe case and are inthepossession, custody
or control ofthe prosecution or persons under the prosecution's direction or control".

### (see People
vSime, 76 Misc.3d 1107, 1111 956, 959 [Crim Ct, Kings County 2022]; 

### People vMartinez, 75 Misc3d 1212(A) [Crim Ct, NYCounty 2022];

### People vDarren, 75 Misc3d 1208(A) [Crim Ct, NY County 2022]; 

### People vAquino, 74 Misc3d 1147, U52 [Sup Ct, NY County 2022]; 

### People v Rodriguez, 73 Misc3d 411, 413 [Sup Ct, Queens County 2021]) and the statute sets forth a nonexhaustive list of items and information that must be disclosed to the defendant as part ofthe People's initial discovery obligation 

### (see People v

### Deas, 75 Misc3d 190, 193 [Sup Ct, Westchester County 2022]; 

### People v

### Rodriguez, 73 Misc3d at 413; 

### People vPerez, 73 Misc3d 171, 173 [Sup Ct; Queens County 2021]; 

### People v Soto, 72 Misc3d 1153, 1155 [Crim Ct, NY County 2021]). CPL§ 245.20 (2) further requires the People to "make a diligent, good faith effortto ascertain the existence of[such] material orinformation," and where it exists, to make itavailablefor discovery,
even ifthe material is not within their possession, custody, or control 

### (see People vMartinez, 75 Misc3d 1212(A); 

### People vDarren, 75 Misc3d 1298(A); 

### People v Cajilima, 75 Misc3d 438, 440

7 The People note that the additional discovery items included "warrant documents; which were previously provided to defendant on August· I0, 2022; CSU photographs; and a Yonkers Police Department discovery compliance checklist" (see Point G, Page 36, ofthe People's Memorandum ofLaw).
16



### [* 16][Sup Ct, Nassau County 2022]; 

### People v Williams, 73 Misc3d 1091, 1103-1104 [Sup Ct, Kings County 2021]; 

### People vPerez, 73 Misc3d at 174). However, notwithstanding the mandates ofCPL § 245.20 (1) and (2), "(n]owhere within CPL article 245

...is there a requirement that the Peopl_e disclose every discovery item under CPL 245.20 (1) prior to the valid filing of a certificate ofcompliance. On the contrary, CPL article 245

...present(s] a theme emphasizing the importance of good faith efforts by the People, and · reasonableness u·nder the circumstances, as it relates to discovery compliance" 

### (People v Bruni, 71 Misc3d 913, 917 [County Ct, Albany County 2021]; 

### see People v Leonardo, 15 Misc3d 1237(A) (Crim Ct, Queens-County 2022]; 

### People vPierna, 74 Misc3d 1072, 1087-1088 [Crim Ct, Bronx County 2022]; 

### People v Barralaga, 7_3 Misc3d 510, 514 [Crim Ct, NY County 2021]; 

### People vRodriguez, 73 Misc3d ~t 416-417; 

### People vKnight, 69 Misc3d 546, 552 (Sup Ct, Kings County 2020]; 

### People vErby, 68 Misc3d 625, 633 [Sup Ct, Bronx County 2020]; 

### People 

# v Askin, 68 Misc3d 372, 378-379 (County Court, Nassau County 2020]). "Article 245 requires the prosecution to proactively disclose qualifying material to defendant and file a 'certification of

### good faith compliance ' prior to stating their readiness for tr_ial" (emphasis added) 

### (People v Leonardo, 75 Mi_sc3d 1237(A), citing CPL 

### §. 30.30 (5) and CPL 

### § 245.50 (3)). Consequently,
numerous courts have

.found that belated disclosure should not invalidate· a Certificate of Compliance that was made in good faith after the exercise ofdue diligence 

### (People v Sime, 76 Misc3d at 1114; 

### People vRodriguez, 73 Misc3d at 416, citing 

### People vBruni, 71 Misc3d at 921; 

### People vErby, 68 Misc3d at 633; 

### People v Gonzalez, 68 Misc3d 1213[A] [Sup Ct, Kings County 2020]; 

### People vKnight, 69 Misc3d at 552; 

### People vLustig, 68 Misc3d 234, 247 [Sup Ct, Queeris County 2020]; 

### People v Randolph, 69 Misc 3d 770, 770 [Sup Ct, Suffolk County 2020]) and a Certificate of Compliance need not be invalidated for· the belated disclosure of discoverable material not previously known to the People 

### (see People vSurgick, 73 Misc3d 1212(A] (Albany City Ct 2021] or because of"[i]nadvertent errors or omissions" 

### (People v Pondexter, 76 Misc3d 349, 353 [Crim Ct, NY County 2022], citing 

### People vNelson, 75 Misc3d 1203[A] [Crim Ct, NY County 2022]; 

### People vRodriguez, 73 Misc3d at 416; 

### People vMoore, 72 Misc3d 903, 907 [Sup Ct, Kings County 2021]). In determining the validity of.the Certificate of Compliance in this case, this Court has · looked atthe People'seffortsto meettheirdiscovery obligations andfinds them sufficient, agreeing

17



### [* 17]that "good faith, due diligence, and reasonableness under the circumstances are the touchstones by which a certificate ofcompliance mustbe evaluated" 

### (People vMarin, 74 Misc3d at 1042, quoting



### .People vPerez, 73 Misc3d at 177; 

### see People v Cajilima, 75 Misc3d at 441; 

### People vHenry, 74 Misc3d 1230(A) [Sup Ct, Richmond County 2022]; 

### People vRodriguez; 73 Misc3d at417; 

### People

' ' 

### v Georgiopoulos, 71 Misc3d 1215(A) [Sup Ct, Queens County 2021]). Here, the People have outlined the due diligence and good faith efforts that they have undertaken to obtain and. provide

.the initial and additional discovery materials and information to the defendant. 

### Ifthere is any discoverable material or information that remains outstanding, it is not due to a lack ofgood faith effort or due diligence onthepart ofthe People. To the extentthat suchhas notyetbeendisclosed, • should the People ascertain the existence ofany ofthe materials and information itemized in CPL § 245.20 (1) through their mandated diligent, good. faith effort to do so or otherwise, they are directed to expeditiously disclose the same upon receipt.thereof. 

### Ifsuch material or information does exist and is missing, disclosed belatedly, or destroyed, this.Court will determine whether a sanction should be imposed and, ifso, the appropriate remedy .or sanctionunderthe circumstances 

### (see CPL 

### §245.80). Accordingly, for the reasons set forth abov·e, this Court finds that the People's statement

.. of readiness was not illusory and Defendant's motion seeking 'invalidation of the People's Certificate of.Compliance is denied.

The foregoing constitutes the Decision and Order ofthis Court.
Dated: Whit~ Plains, New York November 28, 2022

18 

### H

[* 18]

### To: HON. MIRIAM E. ROCAH

. Westchester County District Attorney 111 Dr. Martin Luther King Jr. Blvd. White Plains, New York 10601 · Attn: Assistant District Attorney Annmarie Stepancic

THE LEGAL AID SOCIETY OF WESTCHESTER COUNTY Attorney for Defendant Sandro Suarez 150 Grand Street-Suite 100 White Plains, New York 10601 Attn: Ketienne Telemaque, Esq.

/

19



### [* 19]