DECISION AND ORDER OF THE COURT The defendant, Nana Barnes, has submitted an omnibus motion, dated December 16, 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 January 6, 2023, 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 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 except for counts one and two. 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 three, five and six. The defendant’s motion to release the grand jury minutes is partially moot, because the People certified that they turned over the grand jury testimony in their supplemental certificate of compliance dated September 30, 2022. Otherwise, the defendant’s motion is denied because release of the remainder of the grand jury minutes is not necessary to assist this court in determining the defendant’s motion to reduce or dismiss the indictment. In general, defects in a grand jury presentation require dismissal where “the integrity of the grand jury proceeding is impaired and ‘prejudice to the defendant may result.’” (People v. Huston, 88 NY2d 400, 402 [1996] [quoting CPL §210.35[5]].) Here, this court concludes that the introduction of inadmissible evidence impaired the integrity of the grand jury proceedings as to count one. Count one charges Criminal Possession of a Forged Instrument in the second degree (PL §170.25). Under that statute: A person is guilty of criminal possession of a forged instrument in the second degree when, with knowledge that it is forged and with intent to defraud, deceive or injure another, he utters, or possesses any forged instrument of a kind specified in section 170.10. In this case, the defendant allegedly possessed a forged driver’s license that is included within the meaning of PL §170.10(3). Over the course of the grand jury presentation, the prosecutor presented the testimony of State Trooper Huseyin Kaveci. Trooper Kaveci testified that he stopped the defendant because he observed the defendant speeding in an area of the Long Island Expressway posted at no more than 45 miles per hour, for failing to maintain his lane, and changing lanes without signaling. Following the stop, Trooper Kaveci asked defendant for his driver’s license. Trooper Kaveci opined that the license appeared to be forged because the font size for the dates were improper, the fine print at the top of the license was missing and the photo of the motorist was the wrong size. In addition, Trooper Kaveci checked the New York State DMV database and found that the defendant’s license had been revoked and he had only been issued a non-driver’s license identification card. After observing and interacting with the defendant, Trooper Kaveci concluded the defendant was intoxicated and arrested him for driving while under the influence of alcohol, possession of forged driver’s license and the observed traffic infractions. Count two charges the defendant with Operating a Motor Vehicle While under the Influence of Alcohol (see VTL §1192[3]). Importantly, count two as an E felony requires proof that the defendant was previously convicted of subdivision 2, 2-a, 3, 4 or 4-a of VTL §1192 within the previous ten years (see VTL §1193[1][c][i]). The prosecutor sought to satisfy this element by introducing in evidence grand jury exhibit 2, a certified Uniform Sentence and Commitment form that was attested to by the Westchester County clerk. Exhibit 2 shows that the defendant was charged on November 26, 2016, with Operating a Motor Vehicle While under the Influence and Criminal Possession of a Forged Instrument in the second degree. On November 9, 2018, the defendant was convicted of Operating a Motor Vehicle while Under the Influence in violation of VTL §1192(2) and Attempted Criminal Possession of Forged Instrument in the second degree in violation of PL §§110/170.25. The prosecutor then read to the grand jury in pertinent part the following from Exhibit 2: The State of New York versus Nana O. Barnes, defendant, Male. February 23, 1990 NYSID number 00221087R. The above-named defendant having been convicted by plea, the most serious offense being a felony, is hereby sentenced to crime number 1, attempted possession of a forged instrument, two counts, one Penal Law 110/170.25.00. With a minimum period of one year of incarceration, Maximum term of three years. Crime number 2, operation of a motor vehicle with a blood alcohol content of .08. Count two VTL 1192.2 02, with a sentence of one year incarceration. The prosecutor, by informing the grand jury of the defendant’s past conviction and sentence for attempted possession of a forged instrument, violated the provisions of CPL §60.40. The protective design of CPL §60.40 limits the prosecutor’s use of a defendant’s prior conviction to instances to prove that a defendant has been previously convicted of an offense when the fact of such previous conviction constitutes an element of the offense charged, or to those situations where a testifying defendant may be impeached, or where a witness for the defendant has placed the defendant’s character in issue. None of those circumstances exist here to permit the prosecutor’s use of the defendant’s prior conviction for attempted possession of a forged instrument in the second degree. Later in the proceeding, when the prosecutor instructed the grand jury on the law regarding count two, she again magnified her error by repeating the defendant’s prior conviction for attempted possession of a forged instrument: Evidence has been introduced which shows that the defendant was previously convicted of attempted possession of a forged instrument and DWI in Westchester County. You may consider evidence of the defendant’s previous conviction only to determine whether defendant may be charged with this charge and not any other charges lacking this element. The prosecutor compounded her errors by not providing a meaningful curative instruction to correct the prejudicial effect of introducing defendant’s prior charge of criminal possession of a forged instrument and his conviction and sentence for attempted possession of a forged instrument. 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].) Here, the effect of placing before the grand jury inadmissible evidence of the defendant’s prior accusation and subsequent conviction and sentence for attempted criminal possession of a forged instrument at the same time the same grand jury is considering the current charge of criminal possession of a forged instrument demonstrated to the grand jury the defendant’s propensity to commit that crime. The curative instruction that was provided to the grand jury was contained within and limited to the instructions for the second count that addressed the offense of Operating a Motor Vehicle While Under the Influence of Alcohol rather than to this count. (see People v. Cooper, 78 NY2d 476 [1991].) An indictment resulting from a defective grand jury proceeding must be dismissed when it’s “integrity…is impaired and prejudice may result.” CPL §210.35(5) As the statute recognizes, the “defendant need not demonstrate actual prejudice.” People v. Sayavong, 83 NY2d 702, 709, (1994); Huston, 82 NY2d at 409. Here, this court finds the defendant was likely prejudiced by the prosecutor improperly revealing to the grand jury that the defendant was a repeat offender of the same offense that the grand jury was asked to consider. Accordingly, count one is dismissed with leave to re-present to another grand jury. Count two charges Operating a Motor Vehicle While Under the Influence of Alcohol (VTL §1192[3]). Since the People had introduced evidence that the defendant had been convicted of VTL §1192(2) within the preceding ten years, the defendant’s current charge is a class E felony. The prosecutor thereupon instructed the grand jury in relevant part as follows: Evidence has been introduced which shows that the defendant was previously convicted of attempted criminal possession of a forged instrument and DWI in Westchester County. You may consider evidence of the defendant’s previous conviction only to determine whether the defendant may be charged with this charge and not any other charges lacking this element. The prosecutor did not instruct the grand jury that a person who operates a vehicle in violation of VTL §1192(3) after having been convicted of VTL §1192(2) within the preceding ten years elevates the current charge to a class E felony. The Court of Appeals stated in People v. Calbud, 49 NY2d 389, 394-95 (1980) that “[a] Grand Jury need not be instructed with the same degree of precision that is required when a petit jury is instructed on the law.” The Court of Appeals also stated that “[w]e deem it sufficient if the District Attorney provides the Grand Jury with enough information to enable it intelligently to decide whether a crime has been committed and to determine whether there exists legally sufficient evidence to establish the material elements of the crime.” (Id.) The instruction provided by the prosecutor was incomplete and thus the grand jurors could not properly determine that the charge of operating a motor vehicle while under the influence of alcohol, as charged in count two, should have been deemed a felony. (see People v. Keller, 214 AD2d 825 [3d Dept 1995].) Although the instruction was incomplete, as noted, the evidence before the grand jury was legally sufficient to establish the charge of Operating a Motor Vehicle While Under the Influence of Alcohol (VTL §1192[3]). Accordingly, count two is reduced from a class E felony to the unclassified misdemeanor of Operating a Motor Vehicle While Under the Influence of Alcohol. Count three charges Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree (VTL §511[2][a][ii]). Pursuant to that charge: A person is guilty of the offense of aggravated unlicensed operation of a motor vehicle in the second degree when such person commits the offense of aggravated unlicensed operation of a motor vehicle in the third degree as defined in subdivision one of this section; and…the suspension or revocation is based upon a refusal to submit to a chemical test pursuant to section eleven hundred ninety-four of this chapter, a finding of driving after having consumed alcohol in violation of section eleven hundred ninety-two-a of this chapter or upon a conviction for a violation of any of the provisions of section eleven hundred ninety-two of this chapter. This offense contains the element of knowledge. Thus, the People were required to establish by legally sufficient evidence that the defendant knew or had reason to know that his license was suspended or revoked. (see People v. Pacer, 6 NY3d 504, 508 [2008].) In support of this charge, the People presented testimonial evidence that the defendant drove a vehicle and exhibit 3, his certified Department of Motor Vehicles abstract, which established that his driver’s license was revoked at the time of the offense. However, the People failed to present any evidence to demonstrate that the defendant knew or had reason to know that his license was suspended or revoked at that time. There was no evidence that the defendant, for example, admitted that his license was revoked. Nor did the People introduce documentary evidence, such as proof of mailing of a notice of suspension, that would satisfy the knowledge requirement. Accordingly, the evidence before the grand jury was legally insufficient with respect to count three. Count three is dismissed with leave to re-present to another grand jury. Count five charges Operating a Motor Vehicle at a Speed In Excess of Maximum Speed Limits (VTL §1180[b]; [Operating a vehicle at a speed in excess of maximum speed limits]). However, the prosecutor instructed the grand jury as to VTL §1180(a). That statute provides that ” No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing.” During the course of Trooper Kaveci’s testimony before the grand jury, the prosecutor failed to elicit any testimony that would establish a violation of VTL §1180 (a). Therefore, count five is dismissed with leave to re-present before another grand jury. Count six charges Unsafe Lane Change on a Roadway Laned for Traffic (VTL §1128[a]). Pursuant to that charge: Whenever any roadway has been divided into two or more clearly marked lanes for traffic the following rules in addition to all others consistent herewith shall apply: (a) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety. The only evidence the People adduced with respect to this count was the testimony of Trooper Kaveci. He testified, ” So I observed a vehicle in front of our police car. The vehicle was traveling above the posted speed limit failing to maintain his lane…” He further testified that he was traveling on the Long Island Expressway near the 51st Avenue at about 3:57 a.m. when he observed the defendant’s vehicle. Trooper Kaveci offered no testimony as to the movements he observed the defendant’s car make. Further, there was a total absence of detail in Trooper Kaveci’s testimony as to what lane the defendant’s vehicle was traveling in, how the vehicle varied within the lane, how long the Trooper paced the defendant’s vehicle and the distance it traveled while the defendant failed to maintain his lane of travel and the traffic and road conditions that rendered it unsafe as the operated his vehicle. Trooper Kaveci’s testimony essentially consists of a vague, conclusory characterization devoid of any factual allegations of an evidentiary character. This court finds the evidence offered to sustain count six legally insufficient. Accordingly, count six is dismissed with leave to re-present to another grand jury. MOTIONS TO SUPPRESS The defendant’s motion to suppress tangible evidence on the basis that it was the product of an illegal seizure and arrest 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). Although the defendant has not requested a refusal hearing, the court notes that the people allege the defendant refused to submit to a chemical test following his arrest. Accordingly, in the interest of judicial economy, the court orders a refusal hearing at the same time as the Mapp/Huntley/Dunaway hearing. 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].) 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: February 1, 2023
