People v. Rondon

Defendant Luis Rondon moves for an order granting the following relief: 1. Inspection and dismissal of Indictment 2019-655 pursuant to CPL §§210.20, 210.25, 210.30 and 190.25; 2. Suppression of defendant’s statements to law enforcement pursuant to CPL §§710.20(3) and 710.70 (1); 3. Suppression of evidence; 4. Controverting search warrants; 5. Preclusion of cross-examination of the defendant as to prior bad acts; 6. To compel the District Attorney to provide the defense with any exculpatory evidence pursuant to Brady v. Maryland; 7. Discovery pursuant to CPL §245.20, CPL §240.20 and an order for discovery pursuant to CPL §240.40 (1) (a);¹ 8. A further bill of particulars pursuant to CPL §200.95; and 9. Reserving his right to file further motions pursuant to CPL §255.20. The following papers were read: Notice of Motion — Affirmation of Dennis J. Ring, Esq. and        1-4 Memorandum of Law — Affidavit of Service Michael E. Milza, Esq.’s Affirmation in Response          5 Grand Jury Minutes — Indictment — Voluntary Disclosure Form 6-8 Search Warrant Applications and Search Warrants      9 DECISION & ORDER   Upon the foregoing papers it is hereby ORDERED that the defendant Luis Rondon’s motions are decided as follows: MOTION FOR AN ORDER INSPECTING AND DISMISSING THE INDICTMENT PURSUANT TO CPL §§210.20, 210.25, 210.30 AND 190.25 The defendant moves on several grounds codified in the Criminal Procedure Law related to presentations before a grand jury. Although the defendant only articulates concerns regarding the substantive presentation to the Grand Jury (discussed below), the Court has also considered those procedural aspects of the presentation referenced in this point heading of defendant’s motion, as follows: Motion pursuant to CPL §210.20. The Court has reviewed the Grand Jury presentation and the Indictment. None of the grounds set forth in CPL §210.20, including but not limited to defects in the Indictment, insufficiency of evidence, immunity or untimeliness are present. Based upon the foregoing, this aspect of defendant’s motion is denied. Motion pursuant to CPL §210.25. None of the jurisdictional defects or other invalidating factors set forth in CPL §210.25 are present in the Indictment, or any of the respective counts therein. Based upon the foregoing, this aspect of defendant’s motion is denied. Motion pursuant to CPL §210.30. It appears that defendant is already in possession of the Grand Jury minutes, based upon his recitation of specific questions and answers posed during the presentation. Notwithstanding, defendant’s motion to inspect said minutes is granted pursuant to CPL §210.30 and CPL §245.20 (b), to the limited extent of requiring the People to release all transcripts of the testimony of persons who testified before the Grand Jury. The defendant’s motion is also interpreted as requesting the Court to independently inspect the Grand Jury presentation for legal sufficiency. This motion to inspect is granted and, upon such inspection and the reasons set forth below, defendant’s motion to dismiss the Indictment is denied. The defendant argues that the evidence presented to the Grand Jury was legally insufficient, characterizing it as “largely circumstantial” and unsupported by eyewitnesses or forensic proof. Defendant takes specific exception to two aspects of the Grand Jury presentation, those being the presentation of one witness and the introduction of eleven still photographs. Regarding testimony, the defendant takes exception to the People’s inclusion as a witness April Cruz, the co-worker of the deceased victim, characterizing the same as impermissible hearsay testimony for which no legally cognizable exception applies. The defendant states that the witness’s testimony was “highly inflammatory” because it related to an extramarital affair that defendant was allegedly having with the victim. Over the course of four days, the People presented fifteen witnesses, who testified as to their personal knowledge of the case as well as, where appropriate, their professional experiences in the fields of criminal investigation and forensic pathology. Relying on People v. Huston, 88 NY2d 400 [1996], Defendant argues that the Court must employ a two-step test for determining whether this Indictment should be dismissed: a review of whether there was a defect in the Grand Jury procedures and whether the defect created a possibility of prejudice. In opposition, the People cite People v. Rose, 41 AD3d 742 [2nd Dept., 2007], and argue that their inclusion of the homicide victim’s statements to her co-worker were both appropriate and probative of her state of mind (specifically, that her intent to end the extramarital relationship with defendant and thus, by extrapolation, the defendant’s motive to kill her). The facts at hand are readily distinguishable from the Huston case relied on by the defendant. Nothing in this record rises to the level of impairment of the Grand Jury proceeding or an attempt to improperly influence the Grand Jury, let alone an attempt that would jeopardize society’s interest in the integrity of the criminal process itself (Huston, 88 NY2d at 411). Rather, the inclusion of Ms. Cruz’s information, within the larger context of a wide-ranging Grand Jury presentation, was neither defective nor created the possibility of prejudice to the defendant. Moreover, its scope was appropriately circumscribed by the People, who twice instructed the Grand Jury regarding its use.² Regarding physical evidence, the defendant argues that eleven still photographs taken from surveillance videos at two difference retail stores should not have been admitted as they were not sufficiently authenticated by a witness and created a possibility of prejudice. Purported deficiencies in the laying of a foundation for video before a Grand Jury do not require the exceptional remedy of dismissal of an indictment (People v. Butler, 50 Misc3d 333, 337 [Kings Co. 2015], citing People v. Thompson, 22 NY3d 687, 699 [2014]. In this presentation, a detective assigned to investigate this case testified that he secured the surveillance video from the respective retail stores, determined that the times and dates were correct, and represented that the photographs entered into evidence fairly and accurately depicted portions of said videos. The possible misstep by the People of not producing the retail stores’ technicians to buttress this aspect of their presentation does not warrant dismissal of the Indictment. Accordingly, this aspect of defendant’s motion is denied. Motion pursuant to CPL §190.25. The Court has reviewed the ministerial aspects of the Grand Jury presentation. A quorum of the same nineteen grand jurors was present during the presentation of evidence over the course of three separate days and during the instructions offered on the fourth day. In instructing the Grand Jury, the People specifically inquired and confirmed that the grand jurors who deliberated and were allowed to vote were present to hear all of the testimony and instructions presented over the course of those four days. Moreover, the Court finds that the People properly instructed the Grand Jury on the law and only permitted those grand jurors who heard all the evidence to vote on the matter (see People v. Collier, 72 NY2d 298 [1988]; see also People v. Calbud, 49 NY2d 389 [1980], People v. Valles, 62 NY2d 36 [1984] and People v. Burch, 108 AD3d 679 [2nd Dept., 2013]). Those nineteen Grand Jurors then deliberated and voted 19-0 to indict defendant on all three counts of the Indictment. Based upon the foregoing, the Grand Jury procedure was not defective and this aspect of defendant’s motion is denied. MOTION TO SUPPRESS STATEMENTS The motion is granted to the extent that a hearing is hereby ordered pursuant to CPL§710.60(4)to determine the admissibility of statements allegedly made by the defendant. MOTION TO SUPPRESS EVIDENCE Defendant moves to suppress the use of any evidence obtained as the result of a nonconsensual seizure of his cellular telephone on October 10, 2019 in Bakersfield, California by a New Windsor police detective. In the alternative, he moves for a hearing regarding the circumstances and legality of the seizure of his telephone. In opposition, the People contend that the defendant has failed to submit sworn allegations in support of his grounds for his motion and argue that, accordingly, the Court can summarily deny his request. The motion is granted to the extent that a hearing is hereby ordered pursuant to CPL §710.60(4) to determine the admissibility of physical evidence allegedly obtained from the defendant. MOTION TO SUPPRESS EVIDENCE OBTAINED PURSUANT TO SEARCH WARRANTS Defendant’s motion to suppress physical evidence obtained pursuant to multiple search warrants is denied. In support of his argument, defendant contends that the applications submitted in support of the respective warrants failed to set forth probable cause to believe that such searches would yield evidence related to the killing of Deborah Waldinger, and that they flowed from false statements made by an affiant that an emergency ‘PING’ application was justified. The Court has reviewed the application for the issuance of each warrant in this case, specifically: 1. Two applications of October 9, 2019 made in New Windsor Town Court, regarding a target premises of 251 Quassaick Avenue in New Windsor, New York, a target vehicle (2019 Chevrolet SPK, license plate no. JGY-6793) and tangible items therein;³ 2. An application of October 11, 2019 made in the Superior Court of New Jersey (Essex County) regarding a target vehicle (a 2011 Toyota RAV4, license no. CRUSCADR) located at the Newark International Airport; 3. An application of October 11, 2019 made in New Windsor Town Court, regarding the target vehicle referenced in section two, above (as of the time of this application in the custody of the New York State Police at its Middletown barracks); 4. An application of October 11, 2019 made in New Windsor Town Court, regarding a black Samsung telephone in the custody of the New York State Police; 5. Applications of October 16, 2019, and October 21, 2019 made in Kern County (California) Superior Court, regarding items of personal property in the custody of the Kern County Jail; 6. An application of October 25, 2019 made in Orange County Court, regarding the personal property referenced in section five, above (as of the time of this application in the custody of the Town of New Windsor Police Department); 7. An application of October 25, 2019 made in Orange County Court, regarding Google Inc. and Google Payment Corp. accounts and associated information/communications therein; 8. An application of November 12, 2019 made in Orange County Court, regarding Sprint cellular telephone (646) 977-9208; and 9. An application of November 12, 2019 made in Orange County Court, regarding target clothing in the possession of the Orange County Sheriff’s Office. Upon the Court’s review, it determines that all such search warrants were based upon probable cause and supported by appropriate affidavits. Following notification of the discovery of the victim’s body, law enforcement encountered what appeared to be an unexplained attack of significant brutality with no perpetrator in the immediate area. After learning of the intimate relationship between the victim and the defendant, it was critical that law enforcement ascertain defendant’s whereabouts and his condition, both in the context of ensuring his safety and to assess the potential for similar, immediate harm to others. As such, there is ample support for their determination that there was an emergency situation and to act swiftly in response to the same (including to initiate an emergency PING request). “The requirement of reasonable grounds to believe that an emergency existed must be applied by reference to the circumstances then confronting the officer, including the need for a prompt assessment of sometimes ambiguous information concerning potentially serious consequences” (People v. Rodriguez, 77 AD3d 280, 291 [2nd Dept., 2010]; see also People v. Lamb, 164 AD3d 1470 [2nd Dept., 2018] (assuming, arguendo, that the pinging of the cell phone of a defendant constituted a search implicating the protections of the Federal and State Constitutions, police were nevertheless justified in obtaining defendant’s latitude and longitude from his wireless carrier without a warrant due to the existence of exigent circumstances). Finally, the Court notes that law enforcement was separately apprised of the defendant’s whereabouts directly from his wife, who told them that he had left the area and traveled to California (shortly before their discovery of the victim’s body), rendering his argument regarding the PING application moot. Additionally, as indicated at length in the applications in support of the respective warrants, law enforcement did not rely solely on the PING records to establish probable cause for each search. It was justifiable for them to seek such warrants based, in large part, on the defendant’s own statements that he and the victim had a “big fight” in the days preceding the incident and that he had told her he was ending his marriage. Based upon the foregoing, the defendant’s alternative request for a Franks hearing to controvert the foregoing search warrants is similarly denied. He has failed to make the necessary substantial preliminary showing that the above-referenced search warrants were based upon affidavits containing false statements made knowingly or intentionally, or with reckless disregard for the truth (see Franks v. Delaware, 438 US 154 (1978), People v. Cohen, 90 NY2d 632 (1997), People v. Alfinito, 16 NY2d 181 [1965], People v. Rhodes, 49 AD3d 668 [2nd Dept., 2008], People v. Tordella, 37 AD3d 500 [2nd Dept., 2007]), lv app. den, 8 NY3d 991, People v. Novick, 203 AD2d 692 [2nd Dept., 2002], lv app. den. 98 NY2d 712). MOTION TO PRECLUDE CROSS-EXAMINATION OF THE DEFENDANT AS TO PRIOR BAD ACTS The motion is granted to the extent that a hearing is hereby ordered which will be held immediately prior to trial to determine which, if any, bad acts or convictions may be used as impeachment in the event that the defendant elects to testify at trial or as substantive proof of any material issue in the case. The Court further orders the People to provide the defendant’s attorney with a true copy of defendant’s DCJS Summary Case History and to disclose to the defendant’s attorney any and all acts about which it intends to use as impeachment or as substantive proof of any material issue in the case. The above information must be provided to defendant’s attorney at least fifteen days prior to the first scheduled trial date. MOTION FOR AN ORDER COMPELLING THE DISTRICT ATTORNEY TO PROVIDE THE DEFENSE WITH ANY EXCULPATORY EVIDENCE PURSUANT TO BRADY v. MARYLAND Defendant’s motion is granted to the extent that it is hereby ordered that the District Attorney provide defendant with any and all documents and materials as required under Brady v. Maryland. MOTIONS FOR DISCOVERY (CPL ARTICLE 245) CPL §245.20 provides for automatic discovery and disclosure of several categories of items and information. In the interest of judicial economy, if either party has a particularized reason to believe that there remains outstanding discovery that they have not received, he or she is directed to contact opposing counsel upon receipt of this Order. If the issue remains unresolved within two days of receipt of this Order, counsel for the aggrieved party shall contact the Court to request an immediate compliance conference. As part of the same, to the extent that the People come into possession of information which they believe would form the basis for a protective order, they are required to provide the Court with a sufficiently detailed factual predicate to enable it to evaluate the applicability of Article 245′s factors governing issuance of such orders (see People v. Beaton, 2020 NY Slip Op 00372 [2nd Dept., 2020]). MOTION FOR A FURTHER BILL OF PARTICULARS PURSUANT TO CPL §200.95 In their opposition, the People refuse defendant’s request for a further bill of particulars pursuant to CPL §100.45(4) and CPL §200.95(1) and (4). The Court denies the overly broad component’s of the defendant’s application for “all factual information which is not recited in the indictment that pertains to each offense charged” but grants his application for a further bill of particulars limited to the “specific time of day the People allege that the defendant committed the crimes charged.” In doing so, the Court is cognizant that lack of a precise time in an accusatory instrument is not a fatal defect unless time is an essential element of the crimes charged therein. Notwithstanding, to the extent that this information is in the possession of the People or law enforcement, the Court orders its particularization pursuant to CPL §200.95. MOTION FOR AN ORDER RESERVING DEFENDANT’S RIGHT TO FILE FURTHER MOTIONS PURSUANT TO CPL §255.20 Defendant’s motion for leave to file additional motions is granted only to the extent set forth in CPL §255.20 (3). The aforesaid constitutes the Decision and Order of the Court. Dated: June 9, 2020