People v. Estevez-Peralta

2022 NY Slip Op 34823(U)

• Court: New York County Courts
• Decided: October 11, 2022
• Docket: Indictment No. 22-71506-04
• Status: Unpublished

Opinion

People v Estevez-Peralta 2022 NY Slip Op 34823(U) October 11, 2022 County Court, Westchester Count Docket Number: Indictment No. 22-71506-04 Judge: Anne E. Minihan 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. FILED AND ENTERED COUNTY COURT: STATE OF NEW YORK COUNTY OF WESTCHESTER ON /6 ~; t.J- 2022 ------ .------------------------------------------------------- .---X THE PEOPLE OF THE STA TE OF NE•W /fffi!lBJf,~ A? WESTCHEST~R COUNTY CLERK -against-:- il='JLED LUIS ESTEVEZ-PERALTA Der 1 B 2022 DECISION & ORDER Indictment No. 22-71506-04 . ilM01J1Y . Def~,m,~' -------------·--------------------------·----------------._OF~~ MINIHAN, J. '

Defendant, Luis Estevez-Peralta, is charged by Westchester County Indictment Number 22-71506-04 toget_her with codefendants Junior Silverio Ventura, Andy Rosario, and Edwin Fortunato-Tapia with Grand Larceny in the Third Degree (Penal Law§ 155.35(1]) and Auto Stripping in the Third Degree (Penal Law§ 165.09(1]. Codefendant Junior Silverio Ventura is •additionally charged with Unlawful Fleeing a Police Officer in a Motor Vehicle in.the Third Degree (Penal Law§ 270.25) and Reckless Driving (Vehicle and Traffic Law§ 1212). Defendant has filed an omnibus motion consisting of a Notice of Motion and an Affirmation in Support. 1 In response, the People filed an Affirmation in Opposition together with a Memorandum of Law.

I. MOTION to INSPECT, DISMISS, and/or REDUCE CPL ARTICLE 190

Defendant moves pursuant to CPL 210.20 to dismiss the indictment, or reduce the counts charged against him, on the grounds that the evidence before the Grand Jury was legally insufficient, and the Grand Jury proceeding was defective within the meaning of CPL 210.35. On consent of the People, the Court has reviewed the minutes of the. proceedings before the Grand Jury, provided to the Court by the People on September 26, 2022. . ' The Court denies defendant's motion to dismiss or reduce the counts in the indictment for legally insufficient evidence because a review of the minutes reveals that the evidence presented, if accepted as true, would be legally sufficient to establish yvery element of the offenses charged (see CPL 210.30 [2]). Pursuant to CPL 190.65(1), an indictment must be supported by legally sufficient evidence which establishes that the defendant committed the offenses charged. "Courts assessing the sufficiency of the evidence before a grand jury must evaluate whether the evidence, viewed most favorably to the People, if unexplained and uncontradicted-~and deferring all questions as to the weight or quality of the evidence--would warrant conviction" (People v Mills, 1 NY3d 269, 274-275 (2002]). Legally sufficient evidence means competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's

1 Previous counsel, Ro~alie Leslie, Esq., filed the omnibus motion on defendant's behalf. On October 6, 2022, newly

retained counsel, Kevin McLoone, Esq., adopted the motion.

[* 1] commission thereof (CPL 70.10[1]; see People v Flowers, 138 AD3d 1138, 1139 [2d Dept 2016]). "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]). "The reviewing court's inquiry is limited to whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crimes, and whether the Grand Jury could rationally have drawn the guilty inference. That other, innocent inferences could possibly be drawn from those facts is irrelevant to the sufficiency inquiry as long as the Grand Jury could rationally have drawn the guilty inference" (People v Bello, 92 NY2d 523, 526 [1998]). Here, the evidence presented, if accepted as true, is legally sufficient to establish every element of the offenses charged (CPL 210.30[2]).

. With respect to defendant's claim that the Grand Jury proceeding was defective within the meaning of CPL 210.35, a review of the minutes reveals that a quorum of the Grand Jurors was present during the presentation of evidence, and that the Assistant District Attorney properly and clearly instructed the Granci Jury on the law and only permitted those Grand Jurors who heard all the evidence to vote the matter (see People v Collier, 72 NY2d 298 [1988]; People v Calbud, 49 NY2d 389 [1980]; People v Valles, 62 NY2d 36 [1984]; People v Burch, 108 AD3d 679 [2d Dept 2013]) ..

To the extent that defendant's motion seeks disclosure of portions of the Grand Jury minutes beyond the disclosure directed by CPL Article 245, such as the prosecutor's instructions and/or colloquies, the court denies that branch of the motion.

II. BRADY MATERIAL

The People acknowledge their continuing duty to disclose exculpatory material (Brady v Maryland, 373 US 83 [1963]; see Giglio v United States, 405 US 150 [1971]). The People also acknowledge that they have or will comply with their obligations under CPL 245 .20( 1) (k), (1), . and (p). If the People are or become aware of any such material which is arguably subject to disclosure under Brady and its progeny and Criminal Procedure Law Article 245 which they are unwilling to consent to disclose, they are directed to bring it to the immediate attention of the Court and to submit it for the Court's in camera inspection and determination as to whether it constitutes Brady material discoverable by qefendant.

The Court has served a Brady Order on the People, dated August 2, 2022, which details the time period their disclosure must be made in accordance with the standards set forth in the United States and New York State Constitutions and CPL Article 245. ·

III. MOTION for SANDOVAL and VENTIMIGLIA HEARINGS

· Defendant has moved for a· pre-:trial hearing to permit the trial court to determine the extent,. if at all, to which the People may inquire into defendant's prior criminal convictions or prior uncharged criminal, vicious, or immoral conduct. On the People's consent, the Court orders a pre-trial Sandoval hearing (see People v Sandoval, 34 NY2d 371 [1974]). At said hearing, the

[* 2] People shall notify defendant, in compliance with CPL Article 2 45, of all specific instances of his criminal, prior uncharged criminal, vicious, or immoral conduct of which they have knowledge and which they intend to use in an attempt to impeach defendant's credibility if he elects to testify at trial, and, in any event, not less than 15 days prior to the first scheduled trial date. Defendant shall bear the burden of identifying any instances of his prior misconduct that he submits the People should not be permitted to use to impeach his credibility. Defendant shall be required to identify the basis of his belief that each event or incident may be unduly prejudicial to his ability to testify as a witness on his own behalf (see People v Matthews, 68 NY2d 118 [1986]; People v Malphurs, 111 AD2d 266 [2d Dept 1985]).

If the People determine that they will seek to introduce evidence at trial of any prior uncharged misconduct and criminal acts of defendant, including acts sought to be· used in their case in chief, they shall so notify the Court and defense counsel, in compliance with CPL Article 245, and, in any event, not less than 15 days prior to the first scheduled trial date, and a Ventimiglia/Molineux hearing (see People v Ventimiglia, 52 NY2d 350 [1981]; People v Molineux, 168 NY 264 [ 1901]) shall be held immediately prior to trial to determine whether or not any evidence of uncharged crimes may be so used by the People. The People are urged to make an appropriate decision in this regard sufficiently in advance of trial to allow any Ventimiglia/Molineux hearing to be consolidated and held with the other hearings herein.

Pursuant to CPL § 160.40(2), defendant has asked the Court to provide him with a copy of his Division of Criminal Justice Services report ("RAP sheet") to enable him to prepare for a Sandoval hearing. The Court does not have defendant's RAP sheet and therefore directs the People to provide a copy to defendant, as required pursuant to CPL§ 245.20(1)(p).

IV. MOTION for SEVERANCE and for a SEP ARA TE TRIAL

While not incorporated in his Affirmation, defendant makes an application .in his Notice of Motion requesting defendant be tried separately from his codefendants pursuant to CPL § 200.40(1) (see Defendant's Notice of Motion, page 2, ,r C).

Defendant was properly joined in the indictment (CPL 200.40[1][c]). While the Court may, in its discretion, and for good cause shown, order that defendant be tried separately, defendant failed to demonstrate good cause for severance. Good cause includes a showing that defendant would be "unduly prejudiced by a joint trial" (CPL 200.40[1]). Where the proof against all defendants is supplied by the same evidence, "only the most cogent reasons warrant a severance" (People v Bornholdt, 33 NY2d 75, 87 [1973]; People v Kevin Watts, 159 AD2d 740 [2d Dept 1990]). "[A] strong public policy favors joinder, because it expedites the judicial process, reduces court congestion, and avoids the necessity ofrecalling witnesses ... " (People v Mahboubian, 74 NY2d 174, 183 [1989]).

If defendant moves to sever on the ground that there would be potential prejudice arising from a Sandoval or Huntley ruling, that is denied as premature, with leave to renew after a Sandoval or Huntley ruling, and upon a showing that a joint trial will result in unfair prejudice to him and substantially impair his defense. Notably, a limiting instruction at trial would properly

[* 3] direct the jury to separately consider the proof as to each crime charged, thereby eliminating any prejudice to the defendant (see People v Veeny, 215 AD2d 605 (2d Dept 1995]).

If defendant's claim is that a severance is warranted because the noticed statements of his codefendants (and/or confessions) would be prejudicial as a Bruton violation, that too is premature. In Bruton v United States, 391 US 123 (1968]; the Supreme Court held that the admission of a confession made by one defendant, who does not testify, ·and which contains references implicating his codefendant, violates the latter's right of cross-examination underthe confrontation clause. The court noted that there is a substantial risk that the jury, even with limiting instructions, may consider the implicating references in determining the codefendant's_ guilt. Unless the implicating references can be effectively deleted, the statement is not admissible unless separate trials are had. However, the New York Court of Appeals has defined certain instances where the Bruton rule would not be violated including where the confessing defendant . testifies at the trial, thus affording the codefendant an opportunity to cross-examine him (People v Anthony, 24 NY2d 696 (1969]) and where the codefendant has himself confessed substantially to the same effect as the confessing defendant (People v McNeil, 24 NY2d 550 (1969]). The hearing court must determine the admissibility and possi~ility of the redaction of the codefendants' statements and whether the codefendants will be testifying at defendant's trial.

For these reasons, defendant's motion to sever is premature.

V. MOTION FOR A PAYTON HEARING

Defendant moves to suppress evidence as the fruit of a Payton violation (Payton v NY, 445 US 573 (1980]) or, alternatively, for a Payton hearing. Defendant does not allege that he was arrested in his home or a place he was staying. The People, in their Affirmation in Opposition, indicate that defendant was arrested while a front seat passenge_r in a vehicle located at the intersection of Standish Avenue and Underhill A venue 2 in Yonkers, New.York. As such, defendant's claim is factually deficient to support suppression on this basis.

VI. MOTION to SUPPRESS PHYSICAL EVIDENCE

This branch of defendant's motion is ·granted solely to the extent of conducting a Mapp hearing prior to trial to determine the propriety of any search resulting in the seizure of property (see Mapp v Ohio, 367 US 643(1961]). The hearing will also address whether any evidence was obtained in violation of defendant's Fourth Amendment rights (see Dunaway v New York, 442 us 200 (1979]). Insofar as defendant challenges the seizure of evidence not obtained from his person, the pre-trial hearing will address whether defendant had a reasonable expectation of privacy in any of the locations searched to constitute standing to challenge the seizure of any physical evidence (see Rakas v Illinois, 439 US 128 (1978]; People v Ramirez:..Portoreal, 88 NY2d 99 (1996]; People v Ponder, 54'NY2d 160 (1981]; People v White, I 53 AD3d 1369 (2d Dept 2017]; People.

2 The Court believes this is Underhill Street.

[* 4] v Hawkins, 262 AD2d 423 [2d Dept 1999]). If.it is determined that defendant has standing, then the Mapp hearing will also determine the· propriety of the subject search and seizure.

With respect to any evidence which was retrieved pursuant to a search warrant, the -motion to suppress is denied. The results of a search conducted pursuant to a facially sufficient search warrant are not subject to a- suppression hearing (People v Arnau, 58 NY2d 27 (1982]). Upon review of the four corners of the search warrant affidavit, provided to the Court, the five warrants were adequately supported by probable cause (see People v Keves, 291 AD2d 571 [2d Dept 2002]; see generally People v Badilla, 130 AD3d 744 [2d Dept 2015]; People v Elysee, 49 AD3d 33 [2d Dept 2007]).

VII. MOTION to PRECLUDE NOTICED IDENTIFICATION TESTIMONY CPL 710

The People have not noticed any identifications of defendant. As such, defendant's . motion is moot or premature and is denied.

VIII. MOTION to SUPPRESS NOTICED STATEMENTS and MOTION to PRECLUDE UNNOTICED STATEMENTS

The People have not noticed any statements made by defendant. As such, defendant's motion is moot or premature and is denied. The People acknowledge the statutory requirements · of CPL 710.30. To the extent the People choose to cross-examine defendant, should he elect to testify, the People are instructed to obtain a ruling from the trial court should they seek to impeach hiin with any unnoticed statements. , . The People noticed one statement made by codefendant Junior Silverio Ventura and one statement made by codefendant Edwin Fortunato-T<:1pia. Defendant asserts that these statements were the product of an unlawful arrest and made involuntarily without the codefendants being adequately apprised of Miranda warnings. Defendant lacks standing to raise an issue as to the codefendants' Fourth and Fifth Amendment rights, and, as such, may not challenge the admissibility of the codefendants' statements (see People v Irby, 162 AD2d 714 [2d Dept 1990]; see generally People v Henley, 53 NY2d 403 [1981]). Nev~rtheless, on consent ofth~ People, the Court, by Omnibus Decision and Order in People v Edwin Fortunato-Tapia, 22-71506-03, ordered a Huntley hearing as to codefendant Fortunato-Tapia's statement3 Additionally, the hearing court must determine whether there would be a Bruion violation if the codefendants'. statements were admissible at t~ial, as discussed in Point IV, supra.

3 Codefendant Junior Silverio Ventura is not before this Court. , . , , 5

[* 5] IX. LEAVE TO MAKE ADDITIONAL MOTIONS

Defendant's motion for leave to make additional motions is denied. Defendant must demonstrate good cause for any further pre-trial motion for omnibus relief, in accordance with ·cPL 255.20(3).

The foregoing constitutes the Decision and Order of this Court.

Dated: White Plains, New York October_,_,_, 2022

Honorable Anne E. Minihan · Acting Justice of the Supreme Court To: Hon. Miriam E. Rocah District Attorney, Westchester County 111 Dr. Martin Luther King, Jr., Blvd. White Plains, NY 10601 Attn: ADA Adrian Murphy AMurphy@westchesterda.net

Kevin McLoone, Esq. One Executive Blvd., Suite 105 Yonkers, NY 10701 loonlaw@yahoo.com Attorney for defendant, Luis Estevez-Peralta

[* 6]