The following papers numbered 1 to 93 submitted in this motion. Papers Numbered Notice of motion and affidavits/affirmations: 1-32 Answering and reply affidavits/affirmations: 33-44 Exhibits: search warrant and supporting affidavit. 45-52 Minutes: Grand Jury 53-93 MEMORANDUM Upon due deliberation had, the defendant’s omnibus motion is granted in part and denied in part. See attached memorandum decision of this date. The defendant in an omnibus motion seeks the following relief: (1) inspection of the grand jury minutes by the court and dismissal of the indictment or reduction of the charges; (2) suppression of any evidence obtained as the product of an allegedly illegal seizure and arrest, or in the alternative a Mapp/Dunaway hearing; (3) suppression of identification evidence, or in the alternative a Wade hearing; (4) a voluntariness hearing to determine whether any non-noticed statements made by the defendant to the police may be used by the People on cross examination for impeachment purposes, and/or to determine the voluntariness of any statements made to civilians; (5) preclusion of statements made to the police or identification testimony for which proper notice has not been given pursuant to CPL 710.30; (6) disclosure of any search warrant and supporting materials; (7) an order directing compliance with defense demands for discovery and inspection and a bill of particulars; (8) production of Brady material and issuance of an order confirming disclosure and notice obligations; (9) preservation of police communications; (10) disclosure of any prior crimes or bad acts which the People intend to use at trial on their direct case or to cross examine him, and a Sandoval hearing; (11) reservation of the right to make additional motions; and (12) such other and further relief as the court may deem proper. The motion is determined as follows: Branch (1) of the motion for inspection of the grand jury minutes by the court and dismissal of the indictment or reduction of the charges is granted to the extent that the court has inspected the minutes of the grand jury proceeding, in camera, and finds that the evidence adduced before the grand jury was not legally sufficient to establish that the defendant committed the crime of grand larceny in the fourth degree as charged in count one of the indictment. Count one alleges that the defendant committed larceny in the fourth degree by stealing a cellular phone case from the person of Ashley Lopez. As relevant here, a person is guilty of larceny in the fourth degree when he or she “steals property and when…” [t]he property, regardless of its nature and value, is taken from the person of another” (Penal Law §155.30). The crime of larceny consists of an unauthorized taking, coupled with the “intent to deprive another of property or to appropriate the same” (Penal Law §155.05[1]; see People v. Jennings, 69 NY2d 103, 118 [1986]). Both the terms “deprive” and “appropriate” are specifically defined in Penal Law §155.00. Pursuant to that statute, to “deprive” another person of property means to “withhold it or cause it to be withheld from him permanently or for so extended a period or under such circumstances that the major portion of the economic value or benefit is lost to him,” or “to dispose of the property in such manner or under such circumstances as to render it unlikely that an owner will recover such property” (Penal Law §155.00[3]). To “appropriate” property means to “exercise control over it, permanently or for so extended a period or under such circumstances as to acquire the major portion of its economic value or benefit,” or “to dispose of the property for the benefit of oneself or a third person” (Penal Law §155.00[4]). The concepts of “deprive” and “appropriate” “which ‘are essential to a definition of larcenous intent…connote a purpose…to exert permanent or virtually permanent control over the property taken, or to cause permanent or virtually permanent loss to the owner of the possession and use thereof’” (People v. Jennings, 69 NY2d at 118; see People v. Medina, 18 NY3d 98, 105{2011]; People v. Ataroua, 168 AD3d 466 [1st Dept. 2019]; People v. Drouin, 143 AD3d 1056 [3d Dept. 2016]). “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 1 269, 274-275 [2003], quoting People v. Carroll, 93 NY2d 564, 568 1999]). 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, 1 NY3d at 274). Applying this standard here, the court finds that the People failed to present legally sufficient evidence that the defendant acted with the intent to either deprive the complainant Ashley Lopez of property consisting of her cell phone case, or to appropriate that property to himself. According to the People, on April 4, 2019, the defendant, who was seated in a parked car, called the 14-year-old complainant over to him and asked her to Google directions to a nearby hospital. When the complainant approached the defendant, he took her cell phone from her hand, removed a towel covering his legs, exposed his penis, and began masturbating. The People further allege that the defendant “ejaculated on the cellular phone case, wiped himself with a towel, used the same towel to wipe the complainant’s cellular phone case, and then gave the complainant back her cellular phone and the case.” The complainant then threw away her phone case. The People contend that these actions are sufficient to establish the intent element of larceny because the defendant withheld the complainant’s cell phone case from her “under such circumstances that the major portion of its economic value” was lost to her. Initially, the court notes that the 14-year-old complainant did not actually testify in the grand jury that the defendant ejaculated during the incident and that his bodily fluids came in contact with her phone case. In the grand jury, the complainant testified that after the defendant took her phone from her hand, he removed a towel that was covering his legs, exposing his genitals. The defendant then started to “touch himself.” The complainant told the defendant to give her back her phone, and he responded that he wasn’t going to return the phone “until he finished.” After the defendant “finished,” he cleaned the complainant’s phone “with the towel that he had.” The complainant further testified that when she got home she took the case off her phone because “it was like a memory that I don’t want to remember,” and that what the defendant did to her phone ruined the value to her. Viewing this evidence in the light most favorable to the People, it does not establish, prima facie, that the defendant acted with the intent to deprive the complainant of her cell phone case by withholding it “under such circumstances that the major portion of the economic value or benefit” of the phone case was lost to the complainant, or with intent to appropriate the phone case. Reprehensible as the defendant’s alleged actions were, they do not manifest a larcenous intent. To the contrary, the only reasonable inference that can be drawn from these facts is that the defendant withheld the complainant’s cell phone to detain her and force her to witness him masturbating. The obvious motive for the defendant’s alleged conduct was sexual gratification, not financial gain or a desire to deprive the complainant of her property. Accordingly, count one of the indictment is dismissed. The court finds that there was legally sufficient evidence adduced before the grand jury to establish the commission by the defendant of the remaining offenses charged in the indictment. The court has also inspected the instructions given by the Assistant District Attorney to the grand jury and finds that they were sufficient pursuant to People v. Calbud, Inc. (49 NY2d 389 [1980]). In all other respects, the proceedings comported with the requirements of Article 190 of the Criminal Procedure Law. Branch (2) of the motion for suppression of any evidence obtained as the product of an allegedly illegal seizure and arrest, or in the alternative a Mapp/Dunaway hearing, is denied at this time. The People represent that there was no physical evidence recovered from the defendant at the time of his arrest that they intend to introduce into evidence. The People further represent that the defendant was not in possession of his cell phone at the time of his arrest. Although the People acknowledge that they are in possession of a laptop computer used by the defendant, that device was recovered pursuant to a search warrant executed at the apartment of the defendant’s girlfriend, Maria Cruz. The defendant’s moving papers are devoid of any factual allegations indicating that the defendant would have standing to challenge the search of Ms. Cruz’s apartment. The court also notes that the noticed identification procedure in this case was conducted on May 8, 2019, prior to the defendant’s arrest, and thus was not a product of that arrest. Branch (3) of the motion for suppression of identification evidence, or in the alternative a Wade hearing, is granted to the extent that a Wade hearing is directed. Branch (4) of the motion for a voluntariness hearing to determine whether any non-noticed statements made by the defendant to the police may be used by the People on cross examination for impeachment purposes, and/or to determine the voluntariness of any statements made to civilians, is denied at this time, with leave to renew in the event that the People seek to cross examine the defendant regarding any non-noticed statements made by the defendant to the police, or introduce statements made to civilians. Branch (5) of the motion for preclusion of statements made to the police or identification testimony for which proper notice has not been given pursuant to CPL 710.30, is granted to the extent that any statements or identification testimony for which timely statutory notice was required, but not served, will be precluded from trial. Branch (6) of the motion for disclosure of any search warrant and supporting materials is denied as academic inasmuch as the search warrant executed in this case and the supporting affidavit are annexed to the People’s opposition papers. Branch (7) of the motion for an order directing compliance with defense demands for discovery and inspection and a bill of particulars is granted to the extent that the People are directed to comply with articles 200 and 240 of the CPL or as otherwise contained in the People’s response. Branch (8) of the motion for production of Brady material and issuance of an order confirming disclosure and notice obligations is granted to the extent that an order shall be issued herewith, in accordance with an Administrative Order of the Chief Judge, reminding and directing counsel to uphold their constitutional, statutory and ethical responsibilities in the above captioned proceeding. Branch (9) of the motion for preservation of police communications is granted to the extent that the People are directed to determine if potential Rosario material exists, and to preserve any such material. The People are reminded of their obligations under People v. Rosario (9 NY2d 286 [1961]) and People v. Consolazio (40 NY2d 466 [1976]). Branch (10) of the motion for disclosure of any prior crimes or bad acts which the People intend to use at trial on their direct case or to cross examine the defendant, and a Sandoval hearing, is granted to the extent that the People are directed to provide disclosure at the appropriate time in accordance with CPL 240.43. The defendant’s request for a Sandoval hearing is referred to the trial court. Branch (11) of the motion for reservation of the right to make additional motions and an extension of time to do so is granted to the extent that such motions are authorized under CPL article 255. Branch (12) of the motion for such other and further relief as the court may deem proper is denied as the moving papers fails to state grounds for further relief. The Clerk of Court is directed to serve a copy of this memorandum decision and order on the attorney for the defendant and on the District Attorney. Dated: September 3, 2019 Kew Gardens, New York
