The defendant was indicted by the Grand Jury of Bronx County and charged with Attempted Murder in the Second Degree and other related charges. By omnibus motion, defendant moves for various forms of pretrial relief. The motion is decided as follows:Grand Jury ProceedingsDefendant’s application for inspection of the Grand Jury minutes and for dismissal of the indictment or reduction of the charges therein is granted to the extent that the Court has examined the Grand Jury minutes in camera to determine their legal sufficiency. Upon inspection, the motion to dismiss or reduce the charges is granted in part and denied in part.Counts One through TenWith respect to counts one through ten, the Grand Jury minutes reveal the following: (1) there was a quorum of the Grand Jury present during the presentation of evidence and at the time the District Attorney instructed the Grand Jury on the law; (2) that the instructions were not defective as a matter of law; (3) that the proceedings were proper; and (4) that the evidence before the Grand Jury was sufficient to support said counts in the indictment. Accordingly, defendant’s motion to dismiss or reduce counts one through ten is denied.Counts Eleven through FourteenCounts eleven though fourteen charge the defendant with the following crimes, respectively: Assault in the First Degree [P.L. §120.10(4)]; Assault of a Peace Officer, Police Officer, Fireman or Emergency Medical Services Professional [P.L. §120.08]; Assault in the Second Degree [P.L. §120.05(3)]; and Assault in the Second Degree [P.L. §120.05(6)]. It is alleged that the defendant attempted to cause the death of a Lamont Jackson and that while fleeing on foot from the crime scene, police officers started to follow the defendant in a police vehicle in an attempt to apprehend him. It is further alleged that notwithstanding that the driver of the police vehicle placed the car in “park” in order to pursue the defendant on foot, the police vehicle continued to move forward and it “struck and pinned Sgt. Barbato, causing multiple injuries to Sgt. Barbato.” (Criminal Complaint Page 3 of 3).In his omnibus motion, the defendant argues that counts eleven through fourteen in the indictment “must be dismissed because the People failed to present legally sufficient evidence that Mr. Espinal [the defendant] caused the injuries to Sergeant Laura Barbato.” Specifically, the defendant argues that the failure of the member of the New York Police Department (“NYPD”) to place the police car out of gear “acted as an intervening, unforeseeable act breaking the causal chain linking Mr. Espinal’s alleged acts to the officer’s injuries.”1 For the reasons discussed below, this Court agrees with the defendant’s position that counts eleven though fourteen must be dismissed.Felony assault differs from other assault provisions “in that it does not require any mens rea directly relating to the injury.” [6 NY Prac., Criminal Law §5:17, Felony Assault (4th ed.)]. “The crime of felony assault [Penal Law §120.05(6) and 120.10(4)] requires that the offender cause injury ‘in the course of and in furtherance of’ the commission or attempted commission of most felonies.” [William C. Donnino, Practice Commentary, McKinnney's Penal Law §120.00]. While it is clear that a defendant cannot escape liability merely because he/she did not intend to cause the injury, criminal liability will adhere only when the felons’ acts are a sufficiently direct cause of the injury. [See People v. Hernandez, 82 NY2d 309, 317 (1993); see also People v. Kibbe, 35 NY2d 407 (1974)]. “When the intervening acts of another party are supervening or unforeseeable, the necessary causal chain is broken, and there is no liability for the felons.” [Id.]Based on the principles stated above and upon a review of the Grand Jury minutes, this Court finds that the evidence before the Grand Jury was legally insufficient to support counts eleven through fourteen. First, it is this Court’s determination that the defendant could not have reasonably foreseen that an NYPD officer would negligently fail to place the police vehicle in “park” prior to exiting the vehicle. In addition, this Court finds that the failure of the NYPD officer to place the car in “park” acted as an intervening, unforeseeable act which broke the causal link between the defendant’s alleged acts and the unfortunate injuries of Sergeant Barbato. This court cannot decipher any affirmative act on the defendant’s part that can be said to be a “sufficiently direct cause” of Sergeant Barbato’s injuries and therefore criminal liability does not, in the case at bar, attach to the defendant. Thus, because there was legally insufficient evidence presented in the Grand Jury proceeding to establish that the defendant caused or had any intention to cause Sergeant Barbato’s injuries, counts eleven through fourteen in the instant indictment must be dismissed.The defendant’s application for release of the Grand Jury minutes is denied because it is unnecessary for the determination of this motion. [CPL 210.30(3)].HEARINGSThe defendant was served with notice pursuant to CPL §710.30(1)(a) that the People intend to introduce statements allegedly made by defendant. In the omnibus motion, defendant seeks to suppress the statements, or in the alternative, requests a Huntley/Dunaway hearing. The People consent to a Huntley hearing. However, the People oppose defendant’s motion to expand the Huntley hearing to a Huntley/Dunaway.Upon a review of the motion papers, this Court finds that the defendant has provided sufficient allegations of fact to warrant a Huntley/Dunaway hearing. Accordingly, a Huntley/Dunaway hearing is ordered.Defendant also moves to suppress all physical evidence seized from his person (to wit: a firearm), or, in the alternative, the defendant requests a Mapp/Dunawayhearing. The People oppose this branch of the defendant’s motionUpon a review of the motion papers, this Court finds that the defendant has provided sufficient allegations of fact to warrant a Mapp/Dunaway hearing. Accordingly, aMapp/Dunaway hearing is ordered. However, the defendant’s request for the production of the seized property at the suppression hearing is denied as defendant has not shown that the production of the evidence is necessary to meet his ultimate burden of proving the illegality of the search or seizure. [See People v. Berrios, 28 NY2d 361 (1971); see also, People v. Robinson, 118 AD3d 516 (1st Dept 1986)].The defendant’s motion for a Sandoval/Ventimiglia hearing is referred to the trial judge.Pursuant to CPL §240.43, immediately prior to the commencement of jury selection, the prosecutor is directed to notify defendant of all specific instances of any prior uncharged criminal, vicious or immoral conduct of which the prosecutor has knowledge and which the prosecutor intends to use at trial for purposes of impeaching defendant’s credibility.REMAINING REQUESTS FOR RELIEFThe District Attorney is reminded of their obligation to comply with discovery demands pursuant to CPL §§200.95(2) and 240.20.The defendant is reminded of the continuing obligation to provide the People with reciprocal discovery pursuant to CPL §240.30.The District Attorney is also reminded of the continuing obligation to provide all Brady and Rosario material to defendant. The District Attorney is advised to review and comply with the attached Brady order pursuant to the Administrative Order of the Chief Judge.Upon a proper showing, the Court will entertain appropriate additional motions based upon grounds of which the defendant could not, with due diligence, have been previously aware, or which, for other good cause could not reasonably have been raised in this motion. See CPL §255.20(3).The foregoing constitutes the Decision and Order of this Court.Dated: May 8, 2018Bronx, New York
