DECISION AND ORDER OF THE COURT Omnibus Motion The defendant, Alexis Morillo, has submitted an omnibus motion, dated April 1, 2024, seeking: inspection of the Grand Jury minutes and dismissal or reduction of the indictment; suppression of evidence; orders controverting two search warrants; Sandoval Relief and leave to file further motions. The People’s response dated April 30, 2024, 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. Accordingly, the defendant’s motion to dismiss or reduce the indictment is denied. The defendant’s motion to release the grand jury minutes is partially moot and otherwise denied. In their Certificate of Compliance filed January 19, 2024, the People certified that they had turned over the grand jury testimony to the defense in accordance with the requirements of CPL §245.20(1)(b). Thus, the defendant has received the portion of grand jury transcript to which he is entitled pursuant to CPL §245.20(1)(b) and his motion is moot with respect to that portion of the minutes. 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 defendant’s motion to reduce or dismiss the indictment. MOTIONS TO SUPPRESS The defendant has moved for suppression of the identification procedure in this case, contending the police conducted a suggestive show-up identification procedure on October 4, 2023 or, in the alternative, a Wade hearing. The People, however, affirm that the identification was confirmatory in nature, because witness #11 and defendant are known to one another. Although the prosecutor gave notice pursuant to CPL §710.30(1)(b) “in an abundance of caution…” he contends that witness #1′s identification is not an identification procedure within the meaning of CPL§710.30(1)(b) because witness #1 did not observe the defendant at the time and place of the commission of the crime, but rather viewed video surveillance depicting the defendant before and after the incident in order to determine if witness #1 recognized anyone. Witness #1, after being shown the video surveillance, confirmed the individual in the surveillance videos was the defendant. (affirmation of prosecutor at 3-4) The notice requirement of CPL article 710 applies when the “testimony regarding an observation of the defendant either at the time or place of the commission of the offense or upon some other occasion relevant to the case, to be given by a witness who has previously identified him as such.” (CPL §710.30[1][b]; see CPL §710.20[6]; CPL §710’60[4]). This statutory language contemplates two distinct pretrial viewings of a defendant by an eyewitness. The first one is an actual observation of the defendant either at the time or place of commission or some other occasion relevant to the case. This is the observation that forms the basis for the witness’s prospective trial testimony. (see People v. Peterson, 194 AD2d 124, 128 [4th Dept 1993].) The second is the “separate, police-initiated, identification procedure, for example, a lineup, show-up or photographic array, which takes place after the observation forming the basis of the witness’s prospective trial testimony and prior to trial.” (Id.) In this case, witness #1 was not present at the time of the of the shooting at Detective Paul Ragone during the early morning of September 17, 2023 as he drove eastbound on the Long Island Expressway. Witness #1 was not an eyewitness and did not make an identification as defined by CPL §710.30(1)(b). At the confirmatory procedure, witness #1 was asked only if he or she recognized anyone depicted in the video surveillance. Because the observation of the defendant that forms the basis of witness #1′s prospective trial testimony is not an observation of the defendant at the time or place of the crime, there was no identification procedure within the meaning of the statute and no identification can be suppressed pursuant to CPL §710.30 (1)(b). (see People v. Moreno, 148 AD3d 827 [2nd Dept 2017][defendant not entitled to CPL 710.30 notice, as a witness who viewed video surveillance with police had not previously observed defendant either at the time or place of the commission of the offense or upon some other occasion relevant to the case]; People v. Patoir, 72 Misc3d 858 [Sup Ct, Kings County 2021][People were not required to serve CPL §710.30(1)(b) notice, where two police officers identified defendant in a video in the grand jury, where neither police officer was a witness to the alleged crime but rather recognized defendant based on their prior interactions with him on some other date; there was no identification procedure within the meaning to CPL §710.30[1][b] and no identification that could be suppressed.]; People v. Reyes, 69 Misc3d 963 [Sup Ct, New York County 2020] [where detective, who was not a witness to the crime, recognized defendant as the person in the security footage after studying defendant's arrest photo from a previous arrest, there was no identification procedure and no identification of defendant could be suppressed; "Such a viewing may or may not produce a reliable recognition, depending on such factors as distance and lighting. But it is impossible for the procedure to be conducive to an erroneous suggestion that the person viewed is the criminal."].) Even if the identification was an identification that fell within the meaning to CPL §710.30(1)(b), defendant’s motion is denied on the alternate ground that the identification was confirmatory based on prior familiarity and exempt from the Wade hearing requirement. (see People v. Rodriguez, 79 NY2d 445, 449-450 [1992].) The factual allegations in the defendant’s motion for a Wade hearing are insufficient to give rise to a Dunaway hearing. In his motion, the only facts with which the defendant supports his request for suppression on the basis of a lack of probable cause are that “…said identification, confirmatory or otherwise, was the product of an unlawful arrest and detention and therefore must be suppressed as the fruit of the poisonous tree.” (affirmation of defendant’s attorney at 5 To obtain a Dunaway hearing, a defendant must allege a sufficient factual basis to demonstrate that there is some material factual dispute that requires resolution by such a hearing. (See People v. Mendoza, 82 NY2d 415, 426 [1993].) In this regard, the Court of Appeals has explicitly stated, “An allegation that ‘I did nothing giving rise to probable cause’ is, without more, plainly insufficient because probable cause is a mixed legal-factual issue, and the pleading lacks the factual portion of the equation.” (Id. At 427.) Here, the purportedly factual portion of the defendant’s motion on this point is nearly identical to the allegation the Court of Appeals deemed “plainly insufficient” in Mendoza. Unsurprisingly, then, this allegation is insufficient to give rise to a Dunaway hearing and the defendant’s motion is denied in that regard. Relatedly, the People’s request for a Mosely hearing (see People v. Mosely, __NY3d__, 2024, NY Slip Opinion, 02125 [2024].) is referred to the trial court. MOTION TO COMPEL BRADY/GIGLIO MATERIAL As to the defendant’s demand for Brady/Giglio material, the People are reminded of their continuing duty to provide evidence or information that is favorable to the defendant and is referred to the court’s standing Brady order, which appears below. MOTION TO CONTROVERT Search Warrant Q00801-23 The defendant claims that search warrant Q00801-23 was not supported by probable cause. This warrant authorized the search of a white 2018 Mercedes Benz GLC300 bearing Pennsylvania license plate LST5266, vehicle identification number WDC0G4KB3JV113182 for firearms, ballistics evidence, DNA evidence, fingerprints, and the vehicle’s computer and electronic systems. The vehicle was located at the 111th Police Precinct Queens County. Warrant Q00801-23 was supported by the affidavit of Detective Justin Guzman, a detective assigned to the 111th Police Precinct Detective Squad, who has been an officer for over eleven years and a detective assigned to the 111th Police Precinct Detective Squad for nine months. In that capacity, Guzman was assigned to investigate a shooting incident that occurred on September 17, 2023, at about 12:30 a.m. on the eastbound Long Island Expressway between exits 28 and 30 in Queens County. In the affidavit, Guzman stated he was informed by Detective Paul Ragone that on September 17, 2024, at about 12:20 a.m. he was traveling eastbound in the left lane on the Long Island Expressway between exits 28 and 30 when he observed a white 2018 Mercedes Benz bearing Pennsylvania license plate LST 5266 [hereinafter "the subject vehicle"] in the left lane. Ragone then passed the subject vehicle and returned to the left lane in front of the subject vehicle. The subject vehicle then entered the middle lane and pulled up to and next to Ragone’s vehicle. The driver, a male, displayed a firearm and discharged one shot, striking Ragone’s vehicle in the right front quarter panel. Guzman was further informed by Police Officer Patrick Gardner that on September 18, 2023, at about 2:30 a.m. he found the subject vehicle parked in front of 32-07 20th Road, Queens, New York and thereupon he caused the subject vehicle to be towed to the 111th Police Precinct where it is securely held. Given the facts provided in the affidavit, this application established probable cause that evidence of a crime would be found in the white 2018 Mercedes Benz GLC. In evaluating the probable cause supporting a warrant, the question is whether the application contains “sufficient information to support a reasonable belief that evidence of a crime may be found in a certain place.” (People v. Williams, 187 AD3d 1222, 1222 [2nd Dept 2020] [quoting People v. Coleman, 176 AD3d 851, 851 [2nd Dept 2019].) The information in the affidavit and the minutes met this standard. Further, the defendant’s claim that the warrant was overbroad is also without merit, as the warrant was sufficiently particularized and properly executed. Warrant ordering disclosure of information for mobile telephone assigned telephone number 929-383-3589 The defendant also claims that the application for historical cell site location information and related data for mobile telephone assigned telephone number 929-383-3589 (hereinafter “the subject mobile telephone”) lacked the necessary showing of probable cause. The warrant authorized the acquisition from AT&T Wireless for the subject mobile telephone from September 16, 2023 to September 19, 2023 for cell site location information, past call detail records, subscriber information, transaction records of text/short messages service and mobile message service messages placed or received and wireless internet usage, real time tracking tool report account billing and customer information. The warrant was supported by the affirmation of Assistant District Attorney Gaberial Reale employed by the Queens District Attorney’s Office. In this capacity, Reale relied in part upon information provided by Detective Guzman and knew Guzman executed an affidavit in support of Warrant Q00801-23 that authorized the search of the white 2018 Mercedes Benz GLC 300 SUV. Guzman told Reale that he was assigned to investigate a shooting that occurred on September 17, 2023 at about 12:20 a.m. that involved off duty Police Officer Paul Ragone as he travelled eastbound on the Long Island Expressway between exits 31S and 32. Guzman later that morning interviewed Ragone. Ragone related to Guzman that the driver of the white Mercedes Benz 300 SUV bearing Pennsylvania plate LST 5266 (hereinafter “the subject vehicle”) shot at him. Guzman also interviewed Police Officer Joseph Antuofermo. Antuofermo told Guzman he was on routine patrol on the morning of September 17th in the 115th Police Precinct and was aware that the subject vehicle was wanted, based on a city-wide alert that had been broadcast. Antuofermo saw the subject vehicle at about 2:30 a.m. that morning and while he attempted to stop the vehicle, it rapidly accelerated and got away. Guzman also viewed a video footage of the intersection of 20th Road and 33rd Street. He told Reale that he observed a male Hispanic with dark skin and a beard with a sleeve tattoo on his left arm exiting the subject vehicle at about 2:35 a.m. on September 17th. The man, who is later identified as the defendant, walked southwest on 33rd Street until he is out of frame. He reenters the frame wearing a white t-shirt rather than the dark colored hooded sweatshirt. He then enters the subject vehicle and re-parks it. He then exits the subject vehicle, walks southwest on 33rd Street and enters a Toyota Corolla that Guzman later learned was an Uber vehicle. The driver of the Uber vehicle, Asif Nazir, later informed Guzman that he drove the defendant to Hammersley Avenue, Bronx, New York. Guzman was further informed by Police Officer Patrick Gardner that on September 18, 2023, at about 4:00 a.m. he found the subject vehicle parked in the vicinity of the intersection of 20th Road and 33rd Street in the Astoria section of Queens, New York and thereupon he caused the subject vehicle to be towed to the 111th Police Precinct where it is securely held. During the search of the subject vehicle, Guzman informed Reale that an Auto Zone receipt dated on September 16, 2023 and timestamped at 7:06 p.m. was found indicating the subject vehicle was serviced at an Auto Zone facility located at 3312 Boston Road, Bronx, New York. Guzman then obtained video surveillance from the same Auto Zone facility where the subject vehicle was serviced on September 16, 2023. He told Reale that the footage from the Auto Zone facility depicted a dark-skinned male Hispanic with a sleave tattoo on his left arm. He later exhibited the video footage from the vicinity of 20th Road and 33rd Street in Astoria Queens and the Auto Zone video footage to witness #1. Witness #1 identified the male Hispanic depicted in each video as the defendant. With respect to this warrant, the court finds that it too is supported by probable cause. The warrant was properly particularized and executed and not overbroad. Accordingly, defendant’s motions to controvert both warrants is denied. SANDOVAL RELIEF The defendant’s requests for Sandoval hearing and, ultimately, the preclusion of such evidence are 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 §245.20(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. 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). 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; May 20, 2024
