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

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Op 30001(U), are republished from various New York

State and local government sources, including the New

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This opinion is uncorrected and not selected for official

publication.
COUNTY COURT: ST ATE OF NEW YORK 

COUNTY OF WESTCHESTER 

----------------------------------------------~;- ._,. , --. ·. ------x 

THEPEOPLEOFTHESTATEOFrNEW~Jy<: · . : ~•L . . .i. ED -agamst- t , 

:· DEC 

SANDRO SUAREZ, 

·DECISION & ORDER l 

count of Burglary in the Third Degree pursuant to Penal Law [PL] § 140.20 [Count One], one 

count of Grand 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. Attached to the indictment is the People's Demand for a Notice 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 of statements 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 on July 29, 2022, the People·served and filed a Notice of Motion 

for the Taking of Buccal Cell Samples, an Affirmation in Support of the Taking of Buccal 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. · · 

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Samples, and. a Memorandum of Law seeking an Order "requiring the defendant to permit the 

taking of DNA samples from his body via buccal cell swabs," pursuant to CPL§ 245.40 (1) (e). 

On August 12, 2022, the People served and filed a Certificate of Compliance 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 District Attorney's Office which delineate the dates, times· and methods of such disclosures 

and a Westchester County Department of Laboratories & 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). 

On August 30, 2022, Defendant filed a Notice of Pre-Trial Motions pursuant to CPL Article 

255 (hereinafter "Notice of Motion"), an Attorney's Affirmation, and a Memorandum of Law . . seeking various forms of judicial intervention and relief Defendant also filed an Affirmation in 

Opposition to the People's Motion for the Taking of Buccal Cell Samples. 

On September 12, 2022, this Court received the People's Affirmation in Opposition and 

Memorandum of Law 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 Support of Cross Motion to Amend Indictment (hereinafter "Affirmation in Support 

of Cross Motion), and a Memorandum of Law. 

The Court is also in receipt of an unredacted certified copy of the stenographic transcript 

of the Grand Jury proceeding dated February 26, 2020, an unredacted certified copy of the · 

stenographic transcript of the instructions on the law dated March 3, 2020, and copies of the 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. 

2 The Court is also in receipt of a Discovery Checklist, a Discovery Addendum pursuant to CPL §§ 245. l 0 and 245.20, 

a Certificate of Compliance pursuant to CPL§ 245.50 (I), and a Reciprocal Discovery Demand, all filed in Bronxville. 

Village Court on February 4, 2020. 

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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 NUMBER 20-70271. 

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 grand jury" (see Page 1 of the People's Notice of Cross 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 of the prosecution since the People 

included the language "and unlawfully" in the testimony and charge to the Grand Jury for Burglary 

in the Third Degree as set forth under Count One of the indictment (see Point I, Page 1, of the 

People's Memorandum of Law). 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 proof relating to (the] matters of form, time, place, 

names ofpersons and the like" (People v Bloome, 205 AD3d 1045, 1047 [2d Dept 2022], 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 v McLean, 170 AD3d 1196, 1197-1198 [2d 

Dept 2019]; People v LaPetina, 34 AD3d 836, 838-839 (2d Dept 2006], aff'd 9 NY3d 854 (2007]). 

However, an indictment may not be amended to "change the theory or theories of the prosecution 

as reflected_ in the evidence before the grand jury ... 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 

Dept 2022]; People v McLean, 170 AD3d at 1197-1198; People v Guzman, 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, 8 AD3d 408, 408 [2d 

Dept 2004], l.v. denied 3 NY3d 678 (2004]; People v Luna, 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 of curing [a] failure thereof to charge or state an offense or (a] (l]egal insufficiency 

of the factual allegations"' (People v-Solomon, 203 AD3d at 1470, quoting CPL§ 200.70 (2) (a) 

and (b); see People v Placido, 149 AD3d 1157, 1157'.1158 [3d Dept 2017]; People v Ceballos, 98 

AD2d 475, 477 [2d Dept 1984]) "or [a] misjoinder of offenses or defendants" (People v Mayo, 19 

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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 amendment of the indictment to include the word "unlawfully" does not 

change the theory of the prosecution or tend to prejudice the defendant on the merits. In reviewing 

the unredacted certified transcript of the 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 grand jurors 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 of unlawful entry (Pe.ople v 

Green, 105 AD3d 611, 6i 1-612 [1st Dept 2013], lv.,denied21 NY3d 1015 [2013]), and "[w]hether 

[a] person [is] licensed or privileged to enter a building may be proved by circumstantial evidence" 

(People v Henry, 169 AD3d 1273, 1273 [3d Dept 2019], Iv. denied 33 1'JY3d 1070 [2019], citing 

People v Bethune, 65 AD3d 749, 751 [3rd Dept 2009]; see People v Daniels, 8 AD3d 1022, 1023 

[4th Dept 2004]; Matter of Tyshawn J., 304 AD2d 331,· 331 [1st Dept 2003]). Thus, "[t]he 

prosecutor's reading of the relevant statutory provisions was sufficient to enable the grand jury to 

determine whether [the crime of Burglary in the Third Degree] was committed and whether legally 

sufficient evidence existed to establish the material elements of that 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 extent that Count On_e is amened 

to reflect that "The Defendant, in the Village of Bronxville, County of Westchester _and State of 

New York, on or about October 9, 2019, did knowingly and unlawfully enter a building with intent 

to commit a crime therein." 

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

· INSUFFICIENCY . 

. Citing CPL§ 210.25 (1), Defendant moves to dismiss the indictment on the 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 element of the offense(s) charged 

and Mr. Suarez' commission thereof with sufficient precision to clearly apprise him of the conduct 

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which is the subject of the accusation" (see Point A, Page 2, of Defendant's Notice of Motion and 

Point A, Page 1, of Defendant's Memorandum of Law). 

In response, the People assert that Defendant's motion should be denied as the instant 

indictment provides facts that support every element of the offenses charged and "does so in the 

language of the statute" (see Point A, Page 1, of the People's Memorandum of Law). 

"The essential purpose of a criminal_ indictment is to provide a defendant 'with fair notice 

of the 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], re con. denied 27 NY3d 1009 [2016]; People v Atta, 126 AD3d 

713, 715 [2d Dept 2015], lv. denied25 NY3d 1159 [2015]). "An indictment must.c:ontain 'a plain 

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 thereof with sufficient precision to clearly apprise [him] of the conduct 

wh_ich is the subject of the accusation"' (People v Nunez-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 v Morris, 61 NY2d at 293; People v Iannone, 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'd 72 NY2d 845 [1988]). 

Here, each of the .three (3) counts contained in Indictment Number 20-70271 contains a 

statement that satisfies the requirements of CPL § 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 Indictment Number 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 of the Grand Jury minutes by 

the Court and subsequent to that inspection, for the· dismissal of the indictment or reduction of the 

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counts thereof, on the grounds that the evidence before the Grand Jury was not legally sufficient, 

and that the Grand Jurors were not'properl)' instructed on the applicable law, and on lesser included 

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 insufficient because the testimony failed to show that the Yonkers Police Department · 

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 of Burglary in the Third 

Degree (see Pages 2-3 of Defendant's Memorandum of Law). 

Defendant also contends that the People "failed to provide substantiation for the value of 

the items alleged to be stolen," that the testimony of the owner of the Verizon Store "was based 

on mere· speculation about the value of the items lost" and, therefore, that the People did not prove 

the required elements of valuation as to the charges of Grand Larceny in the Third Degree and 

Crimi1p~l Possession of Stolen Property in the Third Degree (see Page 2 of Defendant's 

Memorandum of Law). 

In their response, the People consent to an. in-camera inspection of the 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, of the People's 

Memorandum of Law), and assert that "Defendant has failed to meet his high burden of showing 

the existence of any error in the grand jury proceeding which rendered it defective" (see Point B, 

Page 6, of the People's Memorandum_ofLaw). 

As to the value of the stolen items, the People contend that "[ d]uring the course of the 

grand jury proceedings, the People elicited testimony from the owner of the Verizon Store about 

the specific items that were stolen and their value and nioved into evidence photographs of the 

stolen items recovered pursuant to the search warrant" (see Point B, _Pages 3-4, of the People's· 

Memorandum of Law). The People aver that "[t]his evidence coupled with the fact that the average 

juror has knowledge as to what cellular devices cost given the mainstream use of cellular devices 

in today's society provides a sufficient bases of knowledge for the grand jurors to ascertain the . . . 

value of the stolen items" (see Point B, Page 4, of the People's Memorandum of Law). 

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The People further contend that the defendant was lawfully arrested and that they offered 

sufficient proof of his criminal intent with respect to. the Burglary in the Third Degree count (see · 

Point B, Pages 4-6, of the People's Memorandum of Law). 

The Court has conducted an in-camera review of the entirety of the Grand Jury 

proceedings, having examined the unredacted certified copies of the 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 grand jurors on the applicable law on March 3, 2020, 

the People. confirmed with the foreperson that those twenty-two (22) grand jurors were present 

throughout -the presentation of the case. These measures by the People satisfy this Court that the 

twenty-two (22) grand jurors who deliberated and voted on the charges contained in Indictment 

Number 20-70271 were present throughout the one-day presentation of the case. 

"Courts assessing the sufficiency of the evidence before a grand jury must evaluate 

'wheth~r the evidence, viewed most favorably to the People, if unexplained and uncontradictedand deferring all questions as to the weight or quality of the evidence-\.\'.ould warrant conviction'" 

(People v Mills, 1 NY3d 269, 274-275 [2003], quoting People v Carroll, 93 NY2d 564,568 [1999]; 

see People v Bello, 92 NY2d 523, 525 [1998]; People v Jensen, 86 NY2d 248, 251 [1995]; People 

v Jennings, 69 NY2d 103, 114 [1986]; People v Booker, 164 AD3d 819, 820 [2d Dept 2018]; 

People v Hulsen, 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, if accepted as true; would establish every element of an offense.charged and the 

defendant's commission thereof' (CPL§ 70.10 (1); see People v Mills, 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 v Ryan 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 proof beyond a reasonable. doubt" (People v Jessup, 90 AD3d 782, 783 [2d ·Dept 

2011 ], quoting People v- Bello, 92 NY2d at 526; see People v Ryan, 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 

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element of the charged crimes,' and whether 'the Grand Jury could rationally have drawn the guilty 

inference"' (People v Bello, 92 NY2d at 526, quoting People v Deegan, 69 NY2d 976,979 [1987]; 

see People v Pino, 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 of Burglary in the_ Third 

Degree as set forth in Count One of Indictment Number 20-70271. _ 

However, as to the charges of Grand Larceny 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 of the 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 of the property at the time and 

place of the crime, or if such cannot be .satisfactorily ascertained, the cost of replacement of the 

property within a reasonable time after the crime." "Any person who testifies as to the value of an 

item 'must provide a basis of knowledge for his [or her] .statement of value before it can be 

accepted as legally sufficient evidence of such value"' (People v Sutherland, 102 AD3d 897, 898 

[2d Dept 2013], quoting People v Lopez, 79 NY2d 402,"404 [1992]; see People v Piasta, 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 

of value' that are unsupported by a basis of knowledge are insufficient" (People v Sutherland, 102 

AD3d at_ 899, quoting People v Loomis, 56 AD3d 1046, 1047 [3d Dept 2008]; see People v Box, 

181 AD3d at 1241; People v Slack, 137 AD3d at 1569; People v Walker, 119 AD3d 1402, 1402-

1403 [4th Dept 2014]; People v Pallagi, 91 AD3d 1266, 1269 [4th Dept 2012]). 

Here, although the store owner testified regarding the items that were missing3 and 

estimated that "[t]he value [ of such items] was about $13,800" (see Page 19, Line 1, of Grand Jury 

Transcript dated March 3, 2020), he failed to provide a basis of knowledge for his ~tatement and 

there was no other evidence as to the value of the stolen property (see People v Sutherland, 102 

AD3d at 899). Thus, the People failed to meet their burden of proving the required value element 

3 The store owner aileged that the items that were stolen included six (6) iPho~e I ls, 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, of Grand Jury Transcript dated March 3, 2020). · 

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of Grand Larceny in the Third Degree (PL § 155.35) and Criminal Possession of Stolen Property 

in the Third Degree (PL § 165.50), to wit, a property value in excess of three-thousand dollars 

($3,000.00). 

Notwithstanding the above, the evidence presented to the Grand Jury did establish the 

crimes of Petit 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 of the indictment, only where 

the "proceeding ... fails to conform to the requirements of CPL Article 190 to such degree that 

the integrity thereof is impaired and prejudice to the defendant may result" (CPL§ 210.35 (5); see 

People v Arevalo, 172 AD3d 891,892 [2d Dept 2019]; People v Williams, 171 AD3d 804,805 [2d 

Dept 2019]). Dismissal of an 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 v Huston, 88 

NY2d 400, 409 [1996]; see People v Williams, 171 AD3d at 805; People v Burch, 108 AD3d 679, 

680 [2d Dept 2013], lv. denied22 NY3d 1087 [2014]; People v Thompson, 81 AD3d 670,671 [2d 

Dept 2011], aff'd 22 NY3d 687 [2014]). Here, the Court finds that no such wrongdoing, conduct 

or errors occurred. 

Further, while a prosecutor is required to instruct the grand jury 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 v Samuels, 12 AD3d 695, 698 [2d Dept 2004]; see CPL§_ 190.25 (6)), "a 

. Grand Jury need not be instructed with the same degree of precision 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 v Batashure, 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 v Castaldo, 146 AD3d 797, 798 [2d Dept 2017]; People v Burch, 108 AD3d at 680; People· 

· v Malan:.P omaeyna, 72 AD3d 988 [2d Dept 201 O]). · It is well settled that such instructions are 

sufficient so long as they provide "enough information to enable [the grand jury] intelligently to 

decide whether a crime has been committed and to determine whether there exists legally sufficient 

evidence to establish the material elements of the crime" (People v Cal bud, 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 v Malan9 

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Pomaeyna, 72 AD3d at 988). 

After an in-camera reviewof the unredacted certified copies of the stenographic transcripts 

of the Grand Jury proceeding and the instructions on the law prnvided therein, this Court 

. determines that the Grand Jury proceeding was not defective and that the 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 of Burglary in the Third Degree is denied and his motion to dismiss or reduce the charges 

of Grand 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 of Stolen 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 v Sandoval, 34 NY2d 371 [1974], and People v. Ventimiglia, 52 NY2d 

350 [1981 ], Defendant moves for a pre-trial hearing "to determine the admissibility at trial for any 

purpose of any and all alleged c·riminal convictions and/or criminal, ·vicious or immoral acts of 

defend~nt," and requests that the People notify him of"all specific instances of defendant's alleged 

prior uncharged criminal, vicious or immoral conduct of which the prosecution has knowledge, 

and which the District Attorney intends to use at trial" (see Point C, Pages 2-3, of Defendant's 

Notice of Motion and Point E, Pages 5-6, of Defendant's Memorandum of Law). 

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 of Law). The People also indicate that should they "seek to introduce defendant's 

prior bad acts on their direct case [pursuant to People v Molineux, 168 NY 264 [1901 ]]; the People 

will inform defense counsel and the Court and. request a hearing before introducing such Molineux 

evidence" (see Point C, Page 9, of the People's Memorandum of Law). 

CPL§ 245.20 (3) (a) provides, in substance and pertinent part, that "[t]he prosecut.ion shall 

disclose to the defendant a list of all misconduct and criminal acts of the defendant not charged in 

the indictment, which the pmsecution intends to use at trial for _purposes of impeaching the 

credibility of the defendant." To the extent that the People seek to use any of Defendant's prior 

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acts of misconduct or criminality on their direct case as substantive proof of any material issue in 

the case, CPL§ 245.20 (3) (b) likewise obligates "[t]he prosecution [to} disclose to the defendant 

a list of all misconduct and criminal acts of the defendant not charged in the 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 proof of any material issue in the case, nor designated their intended 

use thereof, this Court will no.t order the requested Sandoval and Ventimiglia hearings at the present 

time. Should the· People seek to use at trial any prior acts of miscqnduct or criminality of the 

defendant for CPL § 245.20 (3) (a) or (b) purposes, they are directed to disclose to Defendant a 

list of all such acts of misconduct and criminality and to d~signate the intended purpose of each 

listed act. Pursuant to CPL § 245.10 (1) (b ), the People "shall perform [these] supplemental 

discovery obligations as soon as practicable but not later than fifteen (15) calendar days prior to 

the first scheduled trial date" ( emphasis added). If the People do so, Defendant may renew his 

application to preclude the People's use of such acts of misconduct or criminality at trial or, in the 

alternative, request a hearing thereon to determine the admissibility thereof. If the People fail to 

do so, no use of such 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 A venue, the Grey Mercedes 

Benz, the items illegally seized from [Defendant's] person as a result of the unlawful stop and the 

i~ems seized from the BMW X3" (see Point D, Page 6; of Defendant's .Memorandum of Law). 

· 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 

that the police failed to list the make and model of the cell phones allegedly taken from the Verizon 

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Store in their application (see Point D, Page 7, of Defendant's Memorandum of Law). In the 

alternative, Defendant seeks a hearing on this issue (see Point D, Page 7, of Defendant's 

Memorandum of Law). 

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 of all 

evidence, including all physical evidence, and any statements in that such evidence and property . . . 

was unlawfully seized and was the fruit of an unlawful arrest, as defendant was arrested without · 

probable cause" (see Point E, Page 3, of Defendant's Notice of Motion 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 of the BMW_ X3," during which they found 

cellular devices in the back of the vehicle (see Point E, Pages 8-9, of Defendant's Memorandum 

of Law). In the alternative, Defendant seeks "a hearing to determine w~ether defendant was 

arrested with probable cause and the admissibility of such physical evidence including the bladed 

knife alleged to have been found on [his] person" (see Point E, Page 3, of Defendant's Notice of 

Motion). 

In response, the People allege that Defendant's motion to controvert the search warrant and 

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, of the 

. People's M_emorandum of Law). 4 The People further contend that the defendant does not have 

s~anding to contest the search of the 2016 Mercedes Benz or the BMW X3 (see Point D, Pages 1 O., 

11, and Point E, Pcige 20, of the People's Memorandum of Law). Finally, the People aver that 

Defondant's motion to suppress physical evidence should be denied as the Defendant was 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 I I, 2019, "an amended warrant application was submitted by a member of the . 

Village of Bronxville Police Department when it was discovered, upon the execution of the previously signed warrant 

order, that defendant resides in Apartment 2R at 26 Yonkers Avenue and not Apartm~nt 4L as defendant initially told 

police" (emphasis added) (s·ee Point D, Page 14, of the People's Memorandum of Law). The Court presumes from 

the emphasized language above that both a search warrant and an amended search warrant were executed in connection 

with this matter. · 

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Point E, Pages 16-22, of the People's Memorandum ~f Law). · 

A court reviewing a search warrant is required t? give the issuing court "great deference" 

. in determining whether there was probable cause, as a presumption of validity attaches to a search 

warrant approved by a. magistrate who reviews the underlying application and finds sufficient 

evidence of probable 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 v Hanlon, 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. denied 93 NY2d 851 [1999]). To establish probable 

cause, "a search warrant application must provide the magistrate with information sufficient tosupport a reasonable belief that evidence of illegal 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 v Leggio, 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 

reviewing the validity of a search warrant to determine whether it w·as supported by 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 known to the issuing Magistrate 

at the time the warrant application was determined" (People v Gordon, 36 NY3_d 420, 429 [2021 ], 

quoting People v Nieves, 36 NY2d 396, 402 [1975]; see People v Pitcher, 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 v New York, 442 US 200 

[1979], will be conducted to determine whether Defendant has standing to contest the sefilches and . . 

. seizures at issue (People v Ramirez-Portoreal, 88 NY2d 99, 108 [1996]; see People v Leach, 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 v Santiago, 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, if so, whether 

· · the search warrant and the amended search warrant described the items to be seized with sufficient 

particularity so as to not authorize a general, exploratory search (People v Fernandez, 2022 NY 

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Slip Op 06137 [2d Dept 2022]; see People v Nieves, 36 NY2d at 401-402; People v Williams, 187 

AD3d 1222, 1223-1224 [2d Dept 2020]; People v Melamed,178 AD3d 1079, 1081-1082 [2d Dept 

2019]). 

6. MOTION TO SUPPRESS STATEMENTS. 

Citing CPL Ar:ticle 710, the Fourth, Fifth; Sixth and Fourteenth Amendments of the United 

States Constitution and Article I, Section 6, of the New York State Constitution, Defendant moves 

to suppress any statements allegedly made by him as violative of his rights (see Point F, Page 4, 

of Defendant's Notice of Motion and Point F, Page 10, of Defendant's Memorandum of Law). 

Specifically, Defendant contends. that such statements were involuntarily made and "asserts that 

his initial arrest was unconstitutional and made without the requisite probable cause" (see Point F, 

Page 10, of Defendant's M(:::monindum of Law). In the alte_mative, Defendant "requests a Huntley 

hearing ... to aid the Court in determining the issues raised" (see Point F, Page 10, of Defendant's 

Memorandum of Law). 

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 

should be denied" (see Point F, Page 28, of the People's Memorandum of Law). • 

As the People have impliedly' consented to a hearing to address Defendant's claims, 

· Defendant's motion to suppress statements is granted to the extent that hearings pursuant to 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 of the 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 

their discovery obligations and, thus, he requests that the Court_ deem the Certificate of Compliance 

dated August 12, 2022 invalid and the Statement of Readiness. illusory (see Point G,-Pages 12-13, 

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of Defendant's Memorandum ofLaw).5 Specifically, Defendant avers that the People have failed 

to provide the-Search Warrant R,eturn pursuant to CPL§ 690.50 (4) and (5), photographs of"a red 

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 of Law). 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 of Law). 

In response, the People assert that; because they "certified their compliance with the 

discovery demands ofCPL [§] 245.20 on August 12, 2022, when the People filed their Certificate 

of Compliance (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, of the People's Memorandum of Law). 

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, of the People's Memorandum of Law). 

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 of the 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 of the Village of Bronxville Police Department and not a pedestrian, as initially believed 

(see Point G, Page 35, of the People's Memorandum of Law). The People further contend that 

although the search warrant return· has not y~t been provided, they did provide Defendant with "a 

5 Citing CPL Article 245, Defendant also moves "to invalidate the prior Certificate of Compliance [dated February 4, 

2020 filed in Bronxville Village Court] and Statement of Readiness as illusory for failure of the People to provide the 

grand jury minutes" (see Point G, Page 4, of Defendant's Notice of Motion and Point G, Page 11; of Defendant's 

Memorandum of Law). As local court does not have jurisdiction over felony matters _and Defendant concedes that 

"the People cannot proclaim actual readiness in local court" (see Point G, Page ·11, of Defendant'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, of the People's Memorandum of Law). · 

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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 Defendant on such dates (see Point G, Page 35, of the People's Memorandum of Law). 

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, of the People's Memorandum of Law). 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, of the People's Memorandum of Law).7 

Pursuant to CPL § 245.20 (1), the People must automatically disclose to defendant "all 

items and information that relate to the subject matter of the case and are in the possession, custody 

or control of the prosecution or persons under the prosecution's direction or control". (see People 

v Sime, 76 Misc.3d 1107, 1111 956, 959 [Crim Ct, Kings County 2022]; People v Martinez, 75 

Misc3d 1212(A) [Crim Ct, NY County 2022]; People v Darren, 75 Misc3d 1208(A) [Crim Ct, NY 

County 2022]; People v Aquino, 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 of the 

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 v Perez, 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 effort to ascertain the 

existence of [such] material or information," and where it exists, to make it available for discovery, 

even if the material is not within their possession, custody, or control (see People v Martinez, 75 

Misc3d 1212(A); People v Darren, 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· I 0, 2022; CSU photographs; and a Yonkers Police Department discovery compliance 

checklist" (see Point G, Page 36, of the People's Memorandum of Law). 

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[Sup Ct, Nassau County 2022]; People v Williams, 73 Misc3d 1091, 1103-1104 [Sup Ct, Kings 

County 2021]; People v Perez, 73 Misc3d at 174). 

However, notwithstanding the mandates of CPL § 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 of compliance. 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 v Pierna, 74 Misc3d 1072, 1087-1088 [Crim Ct, 

Bronx County 2022]; People v Barralaga, 7_3 Misc3d 510, 514 [Crim Ct, NY County 2021]; 

People v Rodriguez, 73 Misc3d ~t 416-417; People v Knight, 69 Misc3d 546, 552 (Sup Ct, Kings 

County 2020]; People v Erby, 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 of due diligence (People v Sime, 76 

Misc3d at 1114; People v Rodriguez, 73 Misc3d at 416, citing People v Bruni, 71 Misc3d at 921; 

People v Erby, 68 Misc3d at 633; People v Gonzalez, 68 Misc3d 1213[A] [Sup Ct, Kings County 

2020]; People v Knight, 69 Misc3d at 552; People v Lustig, 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 v Surgick, 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 v Nelson, 75 Misc3d 1203[A] [Crim Ct, NY 

County 2022]; People v Rodriguez, 73 Misc3d at 416; People v Moore, 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 at the People's efforts to meet their discovery obligations and finds them sufficient, agreeing 

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that "good faith, due diligence, and reasonableness under the circumstances are the touchstones by 

which a certificate of compliance must be evaluated" (People v Marin, 74 Misc3d at 1042, quoting 

. People v Perez, 73 Misc3d at 177; see People v Cajilima, 75 Misc3d at 441; People v Henry, 74 

Misc3d 1230(A) [Sup Ct, Richmond County 2022]; People v Rodriguez; 73 Misc3d at 417; 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. If there is any 

discoverable material or information that remains outstanding, it is not due to a lack of good faith 

effort or due diligence on the part of the People. To the extent that such has not yet been disclosed, • 

should the People ascertain the existence of any of the 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. If such material or information 

does exist and is missing, disclosed belatedly, or destroyed, this. Court will determine whether a 

sanction should be imposed and, if so, the appropriate remedy .or sanction under the 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 of this Court. 

Dated: Whit~ Plains, New York 

November 28, 2022 

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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. 

/ 

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