DECISION AND ORDER OF THE COURT The defendant, Klever Mogrovejo, has submitted an omnibus motion, dated October 22, 2022, seeking: inspection of the Grand Jury minutes and dismissal or reduction of the indictment; suppression of evidence; Sandoval relief; and leave to file further motions. The People’s response, dated November 9, 2022, consents to some of the relief sought and opposes other relief. The court decides the motion as follows. INSPECTION AND DISMISSAL OR REDUCTION Defendant’s motion to inspect the grand jury minutes is granted. The minutes reveal that a quorum of the grand jurors was present during the presentation of evidence and at the time the prosecutor instructed the grand jurors on the law. The indictment substantially conforms to the requirements set forth in CPL §200.50. The instructions were not defective as a matter of law and the proceedings were proper. Upon inspection of the grand jury minutes and exhibits, this court found the evidence to be legally sufficient to support all counts of the indictment except counts one and three. The defendant also attacks the sufficiency of the evidence with respect to counts one, two and three. Count one charges Operating a Motor Vehicle while Under the Influence as a class D Felony (VTL §1192[3]). Pursuant to VTL §1193(1)(c)(ii), this offense qualifies as a D felony where a defendant has been convicted under subdivisions 2, 2-a, 3, 4, 4-a twice within the preceding ten years. Under that statute: No person shall operate a motor vehicle while in an intoxicated condition. Count three charges Operating a Motor Vehicle without an Ignition Interlock Device (VTL §1198(9). Under that statute: No person subject to a court ordered ignition interlock device shall operate a motor vehicle without such device. The key issue raised by the defendant as to count one and count three was whether the People had proven before the grand jury by competent evidence that the defendant had operated a motor vehicle while intoxicated. In support of the People’s requirement to prove operation of a motor vehicle by the defendant, the prosecutor offered a 911 call in evidence as both a present sense impression and an excited utterance together with the testimony of Police Officer Szachaez and Police Communications Technician Fayola Robinson. The 911 call was received by the 911 Operator at about 4:25 p.m. on May 12, 2020. The call lasted 3 minutes and 23 seconds. The caller identified himself to the 911 Operator as Mr. Hurtarte. In the 911 call, Hurtarte, who did not testify at the grand jury, relates events that were unfolding as he was following the defendant. Hurtarte relates that his G35 Infiniti was just rear-ended by the defendant as he was driving in the vicinity of 61st Street and Queens Boulevard. Hurtarte also informs the 911 Operator that he “now on Queens Boulevard and 58th Street” following the defendant, who he describes as “Hispanic”, driving a black Honda CRV with TLC plate T764016C. Hurtarte further observes the defendant, as he is following him in the area of 61st Street and Queens Boulevard, throwing Corona bottles out of his car and yells to him “Bro, Yo, pull over Bro.” During the call, Hurtarte also relates events that occurred moments before his call to 911. He tells the 911 Operator that he “went right next to the defendant and asked him to pull over, but [the defendant] “just took off”. During that brief encounter, Hurtarte observed that the defendant was “really, really drunk…he couldn’t even speak, like he was slurring and everything.” As the 911 call ends at approximately 4:28 p.m., the 911 Operator advised Hurtarte that the police will be dispatched. Police Officer Szachacz arrived at the intersection of 63rd Street and Queens Boulevard within five minutes of the radio call he received that alerted him to the ongoing dispute. There, he observed two vehicles and determined that the defendant was seated in the black Honda CRV bearing TLC plate T764016C and the Honda had scratches to its front as described by Huartarte to the 911 Operator. He also saw a 2006 Infiniti that had scratches to its rear, spoke to the driver who was standing next to the Infiniti, and determined that he had possession of the defendant’s car keys. Police Officer Szachacz also independently verified that the defendant was intoxicated. Although Police Officer Szachacz never identified Hurtarte as the driver of the Infiniti, there is a sufficient factual predicate from the 911 call and Police Officer Szachacz’s testimony from which to draw a fair inference that Hurtarte was the driver of the Infiniti and the defendant was the driver of the Honda. Upon review of the 911 call recording, Hurtarte’s statements were clearly spontaneous and substantially contemporaneous with the events described. The testimony of Police Officer Szachacz provided sufficient independent corroboration of the account provided by Hurtate in the 911 call moments before, and confirms its accuracy and trustworthiness. (see People v. Brown, 80 NY2d 729[1993]; People v. Gil, 64 Misc3d 135(A) [App Term Sup Ct 2019]; Solovyev v. Smith, 187 Misc2d 400 [App Term Sup Ct 2000].) Moreover, Hurtarte was clearly “under the influence of the excitement of the incident and lacked the reflective capacity essential for fabrication.” (see People v. Sampson, 184 AD3d 1123 [4th Dept 2020]; People v. Coveney, 43 Misc3d 140(A) [AppTerm, 9thand 10th Jud Dists 2014], [quoting People v. Dockery, 107 AD3d 913, 914 [2013]). The 911 call was properly admitted into evidence as a present sense impression and excited utterance exception to the hearsay rule. Accordingly, the defendant’s motion to dismiss counts one and three for lack of legally sufficient evidence is denied. Importantly, count one as a D felony requires proof that the defendant was twice convicted of subdivision 2, 2-a, 3, 4 or 4-a of VTL §1192 within the previous ten years (see VTL §1193[1][c][ii]). The prosecutor sought to satisfy this element by introducing in evidence grand jury exhibits 5, 6, and 7, certificates of conviction. Exhibit 7 shows that the defendant was convicted of the misdemeanor VTL §1192(3) on June 13, 2012, exhibit 6 shows that the defendant was convicted of VTL §1192(2) as an E felony on July 18, 2016, and exhibit 5 shows that the defendant was convicted of VTL §1192 (2-a) as a D felony on February 13, 2019. Nevertheless, for reasons other than those raised by the defendant, count one fails as a D felony because the prosecutor improperly introduced grand jury exhibits 5, 6 and 7 into evidence pursuant to CPL §190.30(2). (see GJ tr at 45-49) CPL §190.30(2) expressly provides that “a report or a copy of a report made by a public servant or by a person employed by a public servant or agency who is a physicist, chemist, coroner or medical examiner, firearms identification expert, examiner of questioned documents, fingerprint technician, or an expert or technician in some comparable scientific or professional field, concerning the results of an examination, comparison or test performed by him in connection with a case which is the subject of a grand jury proceeding, may, when certified by such person as a report made by him or as a true copy thereof, be received in such grand jury proceedings as evidence of the facts stated therein.” The rules of evidence apply to grand jury proceedings (see CPL §190.30[1]), including certain statutory exceptions (see CPL §190.30[2-7]), and “[u]nless otherwise provided by statute or judicially established rules of evidence applicable to criminal cases, the rules of evidence applicable to civil cases are, where appropriate, also applicable to criminal cases.” (see CPL §60.10). The certificates of conviction that comprise grand jury exhibits 5, 6 and 7 are judicial records and do not fall within the specific exception of CPL §190.30(2) that provides only for the admissibility of reports of scientific tests or examinations as outlined therein.1 Therefore, grand jury exhibits 5, 6 and 7 are inadmissible and are incompetent to establish that the defendant was previously convicted twice of subdivision 2, 2-a, 3, 4, or 4-a of VTL §1192 within the previous ten years. Accordingly, count one is reduced from a D felony to an unclassified misdemeanor with leave to re-present to another grand jury within 45 days of this order. Count two charges Tampering with Physical Evidence (PL 215.40[2]). Pursuant to that statute: A person is guilty of tampering with physical evidence when, believing that certain physical evidence is about to be produced or used in an official proceeding or prospective official proceeding, and intending to prevent such production or use, he suppresses it by any act of concealment, alteration or destruction, or by employing force intimidation or deception against any person. The defendant contends that the basis of count two was the act of offering his driver’s license to Police Officer Szachacz that reflected a variation of his name. He argues that the charge of tampering with physical evidence is inapplicable. (affirmation of defendant’s attorney at 6) The defendant would be correct if in fact that was the case. The People in their response, however, clarify that the gravamen of count two is the defendant’s act of throwing Corona beer bottles from his car as he was pursued by Hurtarte as he reported in his 911 call. (Prosecutor’s affirmation at 3). Following the collision with Hurtarte’s vehicle, Hurtarte confronted the defendant from a distance close enough to conclude that the defendant was visibly intoxicated. The fact that the defendant was then observed tossing out Corona beer bottles from his vehicle while being pursued by Hurtarte amounts to sufficient evidence to demonstrate that he was driving while under the influence of alcohol. There is a fair inference to be made that by destroying the Corona beer bottles, the defendant believed he would prevent the use of that evidence at a prospective criminal proceeding that he would be facing in a short while. Thus, the defendant’s motion to dismiss count two for legal insufficiency is denied. Count three charges Operating a Motor Vehicle without an Ignition Interlock Device (VTL §1198(9). Under that statute: No person subject to a court ordered ignition interlock device shall operate a motor vehicle without such device. To sustain this charge, the People were required to establish that the defendant operated a motor vehicle without an ignition interlock device while subject to a court ordered ignition interlock device. To that end Police Officer Szachaez testified that upon inspecting the defendant’s vehicle, he found that an ignition interlock device had not been installed. The following exchange then occurred between the prosecutor and Police Officer Szachaez: (GJ tr at 10) Q. Could you explain what an interlock ignition device is? A. In order to start the vehicle, you need to blow into that device and it shows your sobriety. Q. Is that for the purpose that if you are under the legal limit you are allowed to drive the vehicle? A. Yes. Although this brief, isolated line of questioning by the prosecutor of Police Officer Szachaez did not impair the integrity of the grand jury proceedings, it was improper not only because it was leading, but also because the prosecutor permitted the witness to instruct the grand jury as to the law in violation of CPL §190.25(6) which provides that “The legal advisors of the grand jury are the court and the district attorney, and the grand jury may not seek or receive legal advice from any other source.” Moreover, the legal effect of the Police Officer Szachaez’s testimony was wrong. The context of Police Officer Szachaez’s testimony regarding the ignition interlock device was directly relevant to grand jury exhibit 2, the court order that required the installation of an ignition interlock device on any vehicle owned or operated by the defendant. That order not only required the defendant to install and maintain the device, but also ordered the defendant to “not attempt to start or operate a motor vehicle, resulting in a failed start-up or re-test, when the defendant’s blood alcohol concentration (BAC) is …0 percent or higher.” Thus, the permissible limit for operating a motor vehicle with an ignition interlock device was 0 percent of BAC and not the .08 percent BAC which is generally understood to mean the “legal limit” as testified to by Police Officer Szachaez. The prosecutor compounded this error by not correcting the misleading testimony with a curative instruction as required by CPL §190.30(7). CPL §190.30(7) provides “Wherever it is provided in article sixty that a court presiding at a jury trial must instruct the jury with respect to the significance, legal effect or evaluation of evidence, the district attorney, in an equivalent situation in a grand jury proceeding, may so instruct the grand jury.” Although there is a “lesser standard for measuring the sufficiency of grand jury instructions” (see People v. Dillon, 87 NY2d 885, 887 [195]), the prosecutor may not abdicate their role as legal advisor by failing to give appropriate instructions or by giving improper instructions to the grand jury. (see People v. Valles, 62 NY2d 36, 38[1984] ["The District Attorney is required to instruct the Grand Jury on the law with respect to matters before it"]; People v. Dukes, 156 Misc2d 386, [Sup Ct, NY County 1982] [prosecutor improperly advised grand jury regarding treatment of videotaped testimony by hospitalized witness].) Dorota Marchelewicz testified that as an employee of the Queens District Attorney’s Office she is the city-wide monitor of defendants who are mandated by a court to install an ignition interlock device in their motor vehicle as part of their sentence that involves a conditional discharge. Copies of court orders that mandate the installation of an ignition interlock device are received in her office within five days of the court’s sentence. Defendants who either own or operate vehicles have ten days from the date of sentence to install an ignition interlock device and document the installation of the device with her office. She also receives documentation of the installation from the manufacture/installer of the device as well. Marchelwicz also monitors defendants for compliance and is notified if any defendant with a mandate to install an ignition interlock device is arrested or ticketed for a driving related offense. Upon notification of such an event for a defendant who has not installed an ignition interlock device, Ms. Marchelewicz notifies the relevant court and district attorney of the ignition interlock violation. Ms. Marchelewicz said she received a notification on May 18, 2020, that the defendant had been arrested for a driving related offense and upon reviewing her records she determined the defendant had not installed an ignition interlock device. Thereupon, she notified the appropriate authorities. The prosecutor then showed Ms. Marchelewicz grand jury exhibit 2 that she identified as a court order from Queens Supreme Court that mandated the installation of an ignition interlock device on any vehicle the defendant owned or operated. The following exchange then occurred between the prosecutor and Ms. Marchelewicz: Q. Is this document a fair and accurate copy of the original court order you received from the court that was certified? A. Yes, it is. With that foundational testimony, the prosecutor moved grand jury exhibit 2 into evidence. (GJ tr at 36) Exhibit 2, a court order captioned as “The People of the State of New York vs. Oswaldo Mogrovejo” under Indictment Number 542/2018, bearing NYSID 00089320P, sets out the conditions of the conditional discharge to which the defendant was sentenced. In pertinent part, the order required the defendant to install for a three year period an ignition interlock device on any vehicle he owned or operated commencing on the date of February 13, 2019. Contrary to the People’s position, this copy of a court order is an uncertified court order. Nowhere on exhibit 2 is there a certification or attestation as required by CPLR rule 4540. Moreover, nowhere on exhibit 2 is a court seal affixed. To be admissible as competent evidence, it must be demonstrated that exhibit 2 is not subject to a per se exclusionary rule (see People v. Suber, 19 NY3d 247, 251 [2013]). And to avoid the application of the hearsay rule, a per se exclusionary rule, exhibit 2 must meet the requirements of CPLR rule 4540 (a)-(b). Rule 4540(a) provides for the admissibility of copies of official documents if the documents meet the requirements of Rule 4540(b). Rule 4540(b) requires exhibit 2, a copy of a court order, to have been attested to by an officer of the state. An attestation “is the assurance given by the certifer that the copy submitted is accurate and genuine as compared to the original.” (see People v. Brown, 128 Misc2d 149, 154 [Madison County Ct 1985].) Rule 4540(b) in relevant part provides further that a copy of a judicial record “[…] shall be accompanied by a certificate signed by, or with a facsimile of the signature of the clerk of a court having legal custody of the record and …with his official seal affixed.” A certification “is a demonstration of the legal authority of the officer who has so attested[]“, and also to ensure the reliability of copies of official records in the absence of testimony from the custodian of the record (see People v. Smith, 258 AD2d 245 [4th Dept 1999]; People v. Sykes, 167 Misc2d 588 [Sup Ct Monroe County 1995], affd 225 AD2d 1093[1996][citing Brown at 149]). A certified document is one that has been authenticated (Jerome Prince, Richardson on Evidence §9-201 et seq.[Farrell 11th ed 1995]). Thus, the People were required to provide an authenticated certificate from the officer stating that he/she is the lawful custodian of the document and that his/her signature is genuine and he/she has attested to it as being correct because it has been compared to the original with the seal of the officer affixed to the document. Nowhere on exhibit 2 is there a certificate and an attestation, or a seal of the officer as required by Rule 4540. Although the prosecutor termed exhibit 2 as a certified court order, it was not. Exhibit 2 was nothing more than a copy of a court order containing inadmissible hearsay of no evidentiary value to establish that the defendant at the time of this event was required to install and maintain an ignition interlock device on any vehicle he owned or operated. (see People v. Van Buren, 82 NY2d 878, 881 [1993]; People v. Rosenfeld v. City of New York, 197 AD3d 746, [2nd Dept 2021]). Accordingly, count three is dismissed with leave to re-present to another grand jury within 45 days of this order. MOTIONS TO SUPPRESS The defendant has moved for suppression of the identification procedure in this case or, in the alternative, a Wade hearing, alleging that the identification procedure was suggestive. The People affirm that Mr. Hurtarte observed the defendant operating a motor vehicle in an intoxicated condition, striking his vehicle, before the police were on the scene or involved in any manner. The People, nor does the defendant, allege that the police stopped the defendant’s vehicle or arrested him based on their own observations of any unlawful activity. It is unclear, however, based on the testimony of Police Officer Szachaez, whether Mr. Hurtarte pointed out the defendant before or after the defendant was detained by Police Officer Szachaez and whether Police Officer Szachaez spoke to Mr. Hurtarte before or after he detained the defendant. Accordingly, the defendant’s motion is granted to the extent that the hearing is ordered to determine initially whether the noticed identification was police arranged, and if so, the hearing court must then determine whether the identification procedure was properly conducted and non-suggestive. The defendant’s motion to suppress any post-seizure observations made by the police, and the defendant’s refusal to submit to a breath test is granted to the extent that a Mapp/Dunaway hearing is ordered. The defendant’s motion to suppress statement evidence is granted to the extent that a Huntley/Dunaway hearing is ordered. At that hearing, the hearing court will determine whether the defendant’s statements were made in violation of his Miranda rights and whether the statements were made involuntarily within the meaning of CPL §60.45(2) (a),(b). The People consented to the Huntley hearing. The defendant’s motion to suppress his refusal to submit to a breath test is granted to the extent that a refusal hearing is ordered. At the hearing, the court will determine whether the police officer had reasonable grounds to believe the defendant had been operating a motor vehicle while intoxicated and whether the request to submit to such test was made within two hours of the arrest (VTL §1194[2][a][1]); whether the defendant was given a sufficient warning, in clear and unequivocal language of the effect of such refusal (VTL §1194[2][b][1],[f]); and whether the defendant’s refusal to take the test was persistent. (VTL §1194[2][b][1],[f].) MOTION TO PRECLUDE The defendant’s motion to preclude any unnoticed identification evidence is denied as premature, as the People have not indicated that any such identification procedure exists. Should the existence of unnoticed identification evidence come to light, the defendant is granted leave to move for its preclusion at that time. SANDOVAL RELIEF The defendant’s request for a Sandoval hearing is referred to the trial court. The People are reminded that the disclosure of any Sandoval evidence that they intend to introduce at trial shall be made in accordance with the time frame set forth in CPL §245.10(1)(b) and 245.20(3). LEAVE TO FILE FURTHER MOTIONS The branch of the motion requesting leave to file additional motions is granted to the extent recognized by CPL §255.20(3). ORDER TO COUNSEL This court issues this order as both a reminder and a directive that counsel uphold their constitutional, statutory and ethical responsibilities in the above-captioned proceeding: To the Prosecutor: The District Attorney and the Assistant responsible for the case, or, if the matter is not being prosecuted by the District Attorney, the prosecuting agency and its assigned representative, is directed to make timely disclosures of information favorable to the defense as required by Brady v. Maryland, 373 US 83 (1963), Giglio v. United States, 405 US 150 (1972), People v. Geaslen, 54 NY2d 510 (1981), and their progeny under the United States and New York State constitutions, and pursuant to Criminal Procedure Law (CPL) article 245 and Rule 3.8(b) of the New York State Rules of Professional Conduct, as described hereafter. The District Attorney and the Assistant responsible for the case have a duty to learn of such favorable information that is known to others acting on the government’s behalf in the case, including the police, and should therefore confer with investigative and prosecutorial personnel who acted in this case and review their and their agencies’ files directly related to the prosecution or investigation of this case. Favorable information could include, but is not limited to: a) Information that impeaches the credibility of a testifying prosecution witness, including (i) benefits, promises, rewards or inducements, express or tacit, made to a witness by a law enforcement official or law enforcement victim services agency in connection with giving testimony or cooperating in the case; (ii) a witness’s prior inconsistent statements, written or oral; (iii) a witness’s prior convictions and uncharged criminal conduct; (iv) information that tends to show that a witness has a motive to lie to inculpate the defendant, or a bias against the defendant or in favor of the complainant or the prosecution; and (v) information that tends to show impairment of a witness’s ability to perceive, recall, or recount relevant events, including impairment of that ability resulting from mental or physical illness or substance abuse. b) Information that tends to exculpate, reduce the degree of an offense, or support a potential defense to a charged offense. c) Information that tends to mitigate the degree of the defendant’s culpability as to a charged offense, or to mitigate punishment. d) Information that tends to undermine evidence of the defendant’s identity as a perpetrator of a charged crime, such as a non-identification of the defendant by a witness to a charged crime or an identification or other evidence implicating another person in a manner that tends to cast doubt on the defendant’s guilt. e) Information that could affect in the defendant’s favor the ultimate decision on a suppression motion. Favorable information shall be disclosed whether or not it is recorded in tangible form, and irrespective of whether the prosecutor credits the information. Favorable information must be timely disclosed in accordance with the United States and New York State constitutional standards, and in accordance with the timing provisions of CPL article 245. The prosecutor is reminded that the obligation to disclose is a continuing one. Prosecutors should strive to determine if favorable information exists. The prosecutor shall disclose the information expeditiously upon its receipt and shall not delay disclosure if it is obtained earlier than the time period for disclosure in CPL 245.10(1). A protective order may be issued for good cause pursuant to CPL 245.70 with respect to disclosures required under this order. Failures to provide disclosure in accordance with CPL Article 245 are subject to the available remedies and sanctions for nondisclosures pursuant to CPL 245.80. Only willful and deliberate conduct will constitute a violation of this order or be eligible to result in personal sanctions against a prosecutor. To Defense Counsel: Defense counsel, having filed a notice of appearance in the above captioned case, is obligated under both the New York State and the United States Constitution to provide effective representation of defendant. Although the following list is not meant to be exhaustive, counsel shall remain cognizant of the obligation to: a) Confer with the client about the case and keep the client informed about all significant developments in the case; b) Timely communicate to the client any and all guilty plea offers, and provide reasonable advice about the advantages and disadvantages of such guilty plea offers and about the potential sentencing ranges that would apply in the case; c) When applicable based upon the client’s immigration status, ensure that the client receives competent advice regarding the immigration consequences in the case as required under Padilla v. Kentucky, 559 US 356 (2010); d) Perform a reasonable investigation of both the facts and the law pertinent to the case (including as applicable, e.g., visiting the scene, interviewing witnesses, subpoenaing pertinent materials, consulting experts, inspecting exhibits, reviewing all discovery materials obtained from the prosecution, researching legal issues, etc.), or, if appropriate, make a reasonable professional judgment not to investigate a particular matter; e) Comply with the requirements of the New York State Rules of Professional Conduct regarding conflicts of interest, and when appropriate, timely notify the court of a possible conflict so that an inquiry may be undertaken or a ruling made; f) Possess or acquire a reasonable knowledge and familiarity with criminal substantive, procedural and evidentiary law to ensure constitutionally effective representation in the case; and g) When the statutory requirements necessary to trigger required notice from the defense are met (e.g., a demand, intent to introduce particular evidence, etc.), comply with the statutory notice obligations for the defense as specified in CPL 250.10, 250.20, and 250.30. This constitutes the decision and order of the court. The Clerk of the court is directed to distribute copies of this decision and order to the attorney for the defendant and to the District Attorney. Dated: January 17, 2023
