People v. Smith

2023 NY Slip Op 34716(U)

Opinion

People v Smith

2023 NY Slip Op 34716(U)

June 30, 2023

Supreme Court, Westchester County Docket Number: Ind. No. 23-70836-002 Judge: Robert A. Neary

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.

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FILED

AND \

ENTERED

ON 6.,,. Jd ., . 2aolJ WESTCHESTER

COUNTY CLERK

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER

--- . ------- ·-----------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK

- against - DECISION AND ORDER TORRELL SMITH, Ind. No. 23-70836-002

Defendant.

---------------------. -------------------· ------------------------X

NEARY, J.

The de~endant, Torrell Smith, has been charged with the crimes of Attempted Robbery in the First Degree (three counts), Attempted Robbery in the Second Degree, Attempted Assault in the First Degree and Assault in the Second Degree. The defendant has made an omnibus motion which consists of a Notice of Motion and an Affirmation in support thereof. In response, the People have filed an Affirmation in Opposition together with a . People v. Torrell Smith Indictment No. 23-70836-002

Memorandum of Law. Lastly, the defendant has filed a Reply Affirmation. Having read all of the submitted papers anq reviewed the court file, this Court makes the following determination.

MOTION TO INSPECT THE GRAND JURY MINUTES AND TO DISMISS THE INDICTMENT PURSUANT TO CPL 210.30(10 AND (2)

The defendant's motion to inspect the Grand Jury minutes is granted. Upon an in camera inspection of the Grand Jury minutes by Court, the motion to dismiss the indictment or reduce a charged offense in the indictment is denied.

The Court has reviewed the minutes of the proceeding before the Grand-Jury.

The Grand Jury was properly instructed (See People v. Ca/bud, 49 NY2d 389, 426 NYS2d 389, 402 NE2d 1140 and People v. Valles, 62 NY2d 36,476 NYS2d 50,464 NE2d 418) and the evidence presented, if accepted as true would be legally sufficient to· establish every element of

the offenses charged. [See CPL §210.30(2)]. In addition, the minutes reveal that a quorum of the '\

grand jurors was present during the presentation- of evidence and at the time the district attorney instructed the Grand Jury on the law, and that it was instructed that ~nly those grand juro~s who had heard all the evidence could participate in voting on the matter:

The Court does not find that the release of the Grand Jury minutes or certain portions thereof to the parties was necessary to assist the Court in making this .determination.

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People V. Torrell Smith Indictment No. 23-70836-002

MOTION TO SUPPRESS ANY AND ALL IDENTIFICATIONS OF THE DEFENDANT MADE BY A WITNESS OR IN THE ALTERNATIVE FOR A WADE HEARING PURSUANT TO CPL SECTIONS 710.

This motion is granted to the limited extent of conducting a hearing prior to trial to determine whether or not the noticed identifications are unduly suggestive. [See United States v. Wade, 388 US 218, 87 S Ct. 1926, 18 LE2d 1149]. Specifically, the Court shall det~rmine whether the identifications were so improperly suggestive as to taint any in-court identification. In the event the identifications are found to be unduly suggestive, the Court shall then go on to consider whether the People have proven by clear and convincing evidence that an independent source exists for such witness' proposed in-court identification.

The hearing will also address whether any identifying witness had a prior familiarity with either defendant, the basis of which would render that witness-impervious to suggestion with respect to any identification procedure. [See People v. Rodriguez, 79 NY2d 445].

As to any viewing of surveillance videos depicting portions of the crime in progress, the motion to suppress is, denied as such viewings do not constitute identification procedures within the meaning of CPL 710.30. No selection process is involved and the identifying witness was .present in the video. [See People v. Gee, 99 NY2d 158]. This is not the type of procedure which is subject to suppression.

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People v. Torrell Smith Indictment No. 23-70836-002

MOTION TO SUPPRESS ANY AND ALL PHYSICAL EVIDENCE SEIZED BYLAW ENFORCEMENT PERSONNEL OR IN THE ALTERNATIVE FOR A MAPP HEARING

This branch of the 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 ofproperfy (see Mapp v. Ohio, 367 US 643, 81 S Ct. 1684, 6 LE2d 1081) and whether any evidence was obtained in violation of the defendant's Sixth Amendment right to counsel and/or obtained in violation of the defendant's Fourth Amendment rights. [See Dunaway v. New York, 42 US 200, 99 S Ct. 2248, 60LE2d 824].

MOTION TO SEVERE THE TRIAL OF THE DEFENDANT FROM THE TRIAL OF THE CO- DEFENDANT PURSUANT TO CPL 200.40

The defendant moves for a severance from his co-defendant. The defendant was properly joined in the same indictment. [See CPL §200.40(1)]. The Court may, however, for good cause sho~ order that defendant be tried separately. Good cause includes a showing that defendant would be "unduly prejudiced by a joint trial." [See CPL §200.40(1)]. Further, where the proof against all defendants is supplied by the same evidence, "only the most cogent reasons warrant a sev.erance." [See People v. Bornholdt, 33 NY2d 75, 87, cert. denied 416 US 95 and_ People v. Kevin Watts, 159 AD2d 740]. And,".- .. a strong_public policy favorsjoinder, because it expedites the judicial process, reduces court congestion, and avoids the necessity of recalling witnesses ... !' [People v. Mahboubian, 74 NY2d 174, 183].

This Court must determine the admissibility and possibility of the redaction of the co-defendant's statements and whether the co-defendant will be testifying at defendant's trial.

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· People v. Torrell Smith Indictment No. 23-70836-002

According, the defendant's motion for a·severance is denied as premature, with leave to renew upon a determination of the admissibility of co-defendant's alleged statements,

and upon a showing that a joint trial will result i'n unfair prejudice to him and substantially impair ~is defense.

MOTION FOR A SANDOVAL/VENTIMIGLIA HEARING

Immediately prior to commencement of jury selection, the prosecutor shall, upon request of the defendant, notify the defendant of any prior criminal act which the People seek to use in the cross-examination of the defendant as well as all specific instances of the defendant's prior uncharged criminal, vicious or immoral conduct of which the prosecutor h;:ts knowledge and which the prosecutor intends to use at trial for the purposes of impeaching the credibility of the defendant. Thereafter, upon the defendant's request, the trial court shall. conduct a Sandoval and/or Vent~miglia hearing prior to the commencement of trial. [See People v. Sandoval, 34 NY2d 371 (1974); People· v. Ventimiglia, 52 NY2d 350 (1981); People v. Molineux, 168 NY 264 (1901 )].

This constitutes the opinion, decision and order of this Court.

Dated: White Plains, New York June 30, 2023

ROBERT A. NEARY

SUPREME COURT JUSTI .

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4 I • ••

People v. Torrell Smith

Indictment No. 23-70836-002

Elizabeth H. Shumejda.

Assist;mt District Attorney Westchester County

Office of the District Attorney.

Richard J. Daronco Courthouse 111 Martin_ Luther King Blvd.

White Plains, New York 10601 eshumej da@westchesterda.riet

Robert G. Schneider, Esq .

. Attorney for Defendant Torrell Smith 498A Heritage Hills

Somers, New York _105.89

Robertschneideresq@yahoo.com

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