DECISION & ORDER The defendant has moved by omnibus motion for various forms of pretrial relief. The motion is decided as follows: Grand Jury Minutes/Dismissal of IndictmentThe defendant’s motion to inspect the grand jury minutes is granted. Upon inspection, the motion to dismiss the indictment or reduce a charged offense in the indictment is denied. The minutes reveal that a quorum of the Grand Jury was present during the presentation of evidence and at the time the Assistant District Attorneys instructed the grand jurors on the law. Release of the grand jury minutes is not warranted as there was sufficient clarity in the record to allow the court to determine the motion. CPL §210.30(3). The evidence before the grand jury was legally sufficient to support each and every count in the indictment. The instructions were not defective as a matter of law.The sole function of the court in reviewing the grand jury presentation is to determine if there is “competent evidence, which, if accepted as true would establish every element of the offense charged and defendant’s commission thereof.” CPL §70.10(1). In considering a defendant’s arguments, a court may not inject its own assessment of the weight of the People’s evidence. See People v. Deegan, 69 NY2d 979 (1978). Neither may a court usurp the power of the grand jury. In reviewing the sufficiency of the evidence, the court must be ever cognizant of the principle that the task of weighing the evidence rests solely with the grand jury. See People v. Deegan, 69 NY2d 979 (1978); People v. Cole, 97 AD2d 886 (1983); People v. Piening, 99 AD2d 583 (1984). Applying these principles of law, the indictment in this case is legally sufficient and is supported by credible evidence that conforms with the requirements of law and sets forth sufficient facts to apprise the defendant of the nature of the crimes of which he is accused.1Official misconduct is codified in Penal Law section 195.00. Subdivision (1) of the statute is commonly referred to as “official misconduct by way of malfeasance” while subdivision (2) is referred to as “official misconduct by way of nonfeasance.” Penal Law section 195.00 contains two mens rea elements, requiring both an intent to obtain a benefit or deprive another of a benefit and knowingly acting or refraining from acting. See People v. Feerick, 93 NY2d 433, 445 (1999). The double mens rea element in the statute was designed to prevent criminalization of official actions due to mere good faith error of judgment but rather penalize “flagrant and intentional abuse of authority by those empowered to enforce the law.” Id. at 445. To establish the crime of official misconduct under subdivision one, the People must prove that the defendant committed an act “relating to his office” that constituted an “unauthorized exercise of his official functions,” that he knew the act was unauthorized, and that he acted with the intent to obtain a benefit or deprive another of a benefit. See PL §195.00(1). Here the defendant, a duty captain, was advised that a complaining witness reported an off duty NYPD Detective was involved in a vehicle and traffic accident and was observed to have operated his vehicle under the influence of alcohol. The detective allegedly fled the scene. The complainant called ’911,’ followed him and flagged down a passing patrol car while both he and the Detective were stopped at a red light.The People introduced evidence of the standard police regulations, policies and rules through testimony of supervising and fellow officers as well as the NYPD Patrol Guide, a governing policy manual that delineates the respective authority of officers faced with the situation presented. In accordance with Vehicle and Traffic Law, the NYPD has a rule requiring a person who is suspected of driving under the influence of alcohol submit to a breath test within two hours of the time of arrest. The People presented evidence that the defendant exercised his authority to override departmental protocol governing the timing of DWI testing for the singular purpose of averting the arrest of the detective.The defendant contends that he did not commit an act that was an unauthorized exercise of his official function because the police have unfettered discretion to have a suspect tested at any time, and that a mere deviation from Patrol Guide procedures should not give rise to criminal charges. However the evidence presented to the grand jury sufficiently established that defendant used his position of power to prevent the detective from being subjected to arrest and a DWI test within two hours of the vehicle accident with the goal of avoiding criminal charges. Among other things, the defendant is alleged to have approved a delayed time of arrest. The grand jury was within its authority to conclude that the defendant’s actions were deliberate, that he abused his discretion and that there was probable cause that he committed the charged offense.To be guilty of official misconduct for nonfeasance under Penal Law §195.00(2), the People have to prove that the defendant knowingly refrained from performing an act imposed by law or clearly inherent in the nature of his office, and that he acted with the intent to obtain a benefit or deprive another of a benefit. The nonfeasance alleged is that the defendant had a mandatory duty as the commanding officer in charge to follow and have subordinates follow the normal path of investigation of the complainant who reported a vehicle accident involving an alleged drunk driver who fled the scene of the accident. The People presented evidence that the protocol was no different in this situation. The People argue the defendant had a mandatory duty to follow the standard New York City Patrol Guidelines for suspects who are alleged to have driven under the influence of alcohol, irrespective of his own personal independent observations, and that the defendant deliberately neglected to take these steps.The plain language of the PL§195.00(2) suggests that it not the mandatory or discretionary nature of the failure to act that satisfies the element of nonfeasance, but rather it is the causal connection of a defendant’s failure to act with a “flagrant and intentional abuse of authority by [one] empowered to enforce the law.” See People v. Flanagan, 28 NY3d 644, 660 (2017) (citing People v. Ferrick 93 NY2d at 445). The crime of official misconduct may occur even where the public official’s duty is couched in discretion. See People v. Mackell, 47 AD2d 209, 217 (1975), aff’d 40 NY2d 59 (1976).Penal Law section 10.00(17) states that ‘benefit” means any gain or advantage to the beneficiary including any gain or advantage to a third person pursuant to the desire or consent of the beneficiary. Reading Penal Law sections 195.00 and 10.00(17) together, the evidence presented to the grand jury was legally sufficient to demonstrate that the defendant intended to obtain gain or advantage or deprive another person of a gain or advantage. The ADAs presenting the case in the grand jury properly instructed the jurors as to these sections of the law. Further, the evidence supported the conclusion that the defendant’s acts were related to his official position. The People contend the defendant’s combined affirmative acts and intentional inaction were designed “to curry favor with fellow officer,” whom the defendant relied on for productivity and protection in carrying out the duties of a police officer, as well as to avoid condemnation and the perception that he is an officer who turns on fellow officers and cooperates with IAB. See People’s affirmation at page 12. At this time, the court need not decide whether the defendant received a benefit to himself or a third person under Penal Law sections 195.00(1) or 195.00(2). The evidence presented was sufficient to establish this element.Count three charges the defendant with obstruction of governmental administration in the second degree in violation of Penal Law section 195.05. A person commits the crime of obstruction of governmental administration in the second degree when that person intentionally obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from performing an official function by means of any independently unlawful act. The defendant argues that the People have failed to identify the independent unlawful act that the defendant is alleged to have committed. The People counter that “official misconduct” of the defendant was the independent unlawful act. There was legally sufficient evidence for the grand jury to determine that the defendant intentionally obstructed, impaired or perverted the administration of law or other governmental function, or prevented or attempted to prevent public servants from performing official functions by orchestrating in various ways the improper handling of the Detective’s arrest. The defendant’s motion to dismiss the indictment for a defect in the District Attorney’s instructions on the law to the Grand Jury is denied.Sandoval/VentimigliaPursuant to CPL section 240.43, immediately prior to the 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 a defendant’s 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 the credibility of the defendant. Thereafter, upon defendant’s request, the trial court shall conduct a Sandoval and/or Ventimiglia hearing prior to the commencement of trial. People v. Sandoval, 34 N.Y.2d 371 (1974); People v. Ventimiglia, 52 N.Y.2d 350 (1981); People v. Molineux, 168 N.Y. 264 (1901).DiscoveryThe People are reminded of the continuing obligation to provide exculpatory information to the defendant. See Brady v. Maryland, 373 US 83 (1963). A separate order addressing this issue accompanies this decision. The People are also reminded of their burden to serve discovery and to preserve any audio or video recordings for trial. The parties are ordered to comply with discovery requests, or to file a refusal to disclosure pursuant to CPL §240.35 within ten days of the date of this order. Failure of a party to comply with a demand, or to file a written refusal may result in preclusion of any evidence subject to discovery under CPL §240.30.Bill of ParticularsThe defendant acknowledged that the People provided a bill of particulars, but argues that a second bill of particulars is necessary as the initial responses were too vague to be sufficient. The defendant has a basic fundamental right to be informed of the charges against him so that he will be able to prepare a defense. People v. Iannone, 45 NY2d 589, 599 (1978). However, the function of a bill of particulars is to clarify the charges in the indictment by furnishing information as to the substance of the factual allegations. See PL §200.95. Criminal Procedure Law section 200.95(1) specifically states, “the prosecutor shall not be required to include in the bill of particulars matters of evidence relating to how the people intend to prove the elements of the offense charged or how the people intend to prove any item of factual information in the bill of particulars.” A bill of particulars is not a discovery device under Criminal Procedure Law Article 240. People v. Davis, 41 NY2d 678, 679-680 (1977). Upon review of the indictment and the bill of particulars, the court finds the bill of particulars is sufficient as it gives adequate notice of the nature and character of the crimes charged. See CPL §200.95.Motion to suppress cell site location information & other phone dataThe defendant moves to suppress the cell site location information and other phone data relating to the cell phone he carried as a member of the NYPD. The defendant alleged that the People procured the data without a warrant in violation of the Fourth Amendment and the New York State Constitution, citing Carpenter v. U.S., 138 S.Ct. 2206 (2018)2. The defendant was issued a cell phone by the NYPD that he contends he was to carry 24/7 in case of an emergency. The defendant alleges that the NYPD does not have a policy advising its employees who have NYPD issued cell phones that the data is not kept private. The defendant alleged that the People received phone record information from AT&T without a warrant, as well as from IAB who also obtained records from AT&T for the period covering March 30, 2017 — April 27, 2017. Defendant argues that he has a reasonable expectation of privacy in the data relating to the NYPD cell phone because it tracks his whereabouts both on and off duty.On April 27, 2017, the District Attorney’s Office sent a signed grand jury subpoena to AT&T requesting subscriber information, names, addresses, alternate phone numbers, email addresses and methods of payment as well as incoming and outgoing calls and text messages for an NYPD issued cell phone that the defendant carried with him both on and off duty. On October 12, 2017, the People issued an identical subpoena. The People did not request cell site location information but they did request GPS location data for the defendant’s NYPD issued phone from IAB. The NYPD collects and maintains GPS data on all NYPD issued cell phones which are then automatically stored by NYPD. The GPS information that the People originally requested was not provided by AT&T but rather by NYPD. The data was collected by NYPD and a report was generated and provided to the People on consent of NYPD.In addition, NYPD is the entity that owns and pays for the phone, has the ability to consent to a search of the phone as well as to a search of the GPS data contained therein. As a result, as the People contend, the defendant knew or should have known of the policies surrounding NYPD-issued cell phones. The People attached to their affirmation as Exhibit 6 “NYPD Operations Order, Pilot Program — Use of Department Smartphones and Tablets,” dated May 5, 2015. At page 2, paragraph 8, it states: “[m]embers of service must carry their Department smartphones while on duty….Members of service may secure smartphones at their commands when they are off-duty, or carry them while off-duty, though use is restricted to Department business at all times.” In paragraph 9 of the same Order, it directs the officer who is issued NYPD-issued cell phone to set the global positioning system to the “on” position and must remain on the GPS enabled while on duty. The People also cite the NYPD Patrol Guide which statesMembers are advised that they do not maintain any right to privacy in any feature of these devices, including any communication and other application. Communications, photo and/or video may be access and retrieved by the Department at any time with or without the user’s prior knowledge. Members of the service should understand that any email, text, voicemail, photo, video, GPS, or other information generated by any other application on these devices, may be Rosario material and/or information that is discoverable in a criminal prosecution.While the defendant’s motion to suppress cell site data is moot, the motion as it relates to any other cell phone data on the defendant’s NYPD — issued cell phone is denied as the defendant did not have a reasonable expectation of privacy in the GPS information that the NYPD collected and stored on a regular basis on all departmental cell phones. The defendant is a thirteen year veteran of a Bronx police precinct who was provided a NYPD-issued phone to be carried while on duty. The NYPD patrol guide issued in May of 2015 clearly states that the members of service do not maintain any rights of privacy in any feature, including the GPS information, and that the NYPD may provide this information to the People or other entities as noticed.Leave For Further MotionsUpon 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).This decision shall constitute the order of this court.Dated: Bronx, New YorkJanuary 15, 2019
