DECISION AND ORDER On March 20, 2024, after a joint jury trial, Mahilima Baa and Alfonso Nunez were found guilty of, inter alia, Grand Larceny in the Second Degree (PL §155.40) for numerous bank and credit transactions that grossly exceeded the scope of a power of attorney and continued after such power of attorney was revoked by another court. Shortly after trial, Baa and Nunez moved to set aside the verdicts pursuant to CPL §330.30. After careful consideration of the submissions by the parties, the trial transcripts, and all relevant case law, the motions to set aside the verdicts are denied for the reasons discussed herein. DISCUSSION New York Criminal Procedure Law §330.30(1) provides, “At any time after rendition of a verdict of guilty and before sentence, the court may, upon motion of the defendant, set aside or modify the verdict or any part thereof upon the following grounds…(1) Any ground appearing in the record which, if raised upon appeal from a prospective judgement of conviction, would require a reversal or modification of the judgement as a matter of law by an appellate court.” In considering a motion to set aside or modify a jury verdict pursuant to CPL §330.30(1), a trial court may only consider questions of law, not fact, and a motion to set aside a verdict may not include matters that did not appear in the trial record. See People v. Giles, 24 N.Y.3d 1066 (2014); People v. Ventura, 66 N.Y.2d 693 (1985); People v. Carter, 63 N.Y.2d 530, 536 (1984). A motion made pursuant to CPL §330.30(1) must be based upon a claim that would require reversal or modification of the judgement as a matter of law by an appellate court. See Ventura, 66 N.Y.2d at 694. Moreover, a court may only consider claims of error which are properly preserved for appellate review. See People v. McFadden, 94 A.D.3d 1150, 1151 (2012); People v. Francis, 114 A.D.3d 699 (App. Div. 2d Dept. 2014); People v. Simmons, 74 A.D.3d 1247 (App. Div. 2d Dept. 2010). 1. Insufficient Evidence Baa and Nunez first argue that the prosecution presented insufficient evidence to support the findings of guilt returned by the jury. The record belies this contention. Upon a review under CPL §330.30, a trial court is restricted to determining whether the trial evidence, when viewed in the light most favorable to the People, is legally sufficient to establish a defendant’s guilt of the convicted offense. See People v. Contes, 60 N.Y.2d 620 (1983); People v. Hobot, 200 A.D. 586 (App. Div. 2d Dept. 1994). When determining whether to set aside a verdict, the crux of the inquiry is “whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial.” People v. Bleakley, 69 N.Y.2d 490, 495 (1987). Here, a review of the trial record in the light most favorable to the People reveals that there was legally sufficient evidence to establish both Baa and Nunez’s guilt of the offenses of which they were found guilty. The testimonies of numerous financial records custodians detailed the nature and amount of bank and other financial transactions both during the active power of attorney and after its revocation by a civil court. That evidence, combined with audio and videotape recordings of Nunez, Baa, and Rose Kane, Rose Kane’s guardian ad litem, and other witness testimony, supported every element of every count for which the jury found them guilty. A reasonable view of the testimony of the various witnesses pertaining to the means and manner of Baa and Nunez’s looting of Rose Kane’s assets, which the jury found credible — despite a purported valid power of attorney. This evidence supported a determination that these individuals grossly exceeded the scope of any valid, lawful power of attorney. When the trial record is viewed in the light most favorable to the People, the jury’s verdict cannot be said to be unsupported by the evidence as a matter of law. 2. Failure to Dismiss for Invalid Certificates of Compliance (“COC”) Both Nunez and Baa claim that this Court erred by failing to dismiss this indictment prior to trial due to the People’s initial COC being invalid. Both litigants brought motions before the Honorable Danny Chun to dismiss the indictment due to belated discovery disclosures pursuant to CPL §245.20 and the resultant expiration of CPL §30.30 time. These motions were denied in a written decision by Justice Chun on February 28, 2024, charging the People with zero days. The parties did not request an opportunity to reargue the motion, and as such, trial commenced the following day. Furthermore, pursuant to CPL §210.20(1)(g), a §30.30 motion to dismiss the indictment “must be made prior to the commencement of trial.” Accordingly, not only is this Court bound by Justice Chun’s prior determination of the validity of the original COC, but this Court also cannot consider the merits of the reargued COC and speedy trial challenge as it is untimely. 3. Belated Disclosure of Go Daddy and Cash App Records Baa and Nunez argue that the belated disclosure of Go Daddy and Cash App financial records should have resulted in the dismissal of the instant case pursuant to CPL §§245.20(1) and 30.30, thus rendering the instant matter per se reversible. This Court disagrees. Pursuant to CPL §245.50(1), the inquiry to determine whether a COC is valid is whether “after exercising due diligence and making reasonable inquiries to ascertain the existence of material and information subject to discovery, the prosecutor has disclosed and made available all known material and information subject to discovery.” Recently, in People v. Bay, the Court of Appeals held that this analysis is “a mixed question of fact and law” and that courts must also consider “the efforts made by the prosecution and the prosecutor’s office to comply with the statutory requirements, the volume of discovery provided and outstanding, the complexity of the case, how obvious any missing material would likely have been to a prosecutor exercising due diligence, the explanation for any discovery lapse, and the People’s response when apprised of any missing discovery.” 2023 NY Slip Op 06407 (2023) at *6, *15-16. Furthermore, the Bay court made clear that “the statute does not require nor anticipate a ‘perfect prosecutor.’” Id. At *16. Here, the Court found that the failure to disclose the records at issue were not due to a lack of due diligence or good faith. The records were properly obtained by the People subject to subpoenas of private corporations after the filing of a COC. See CPL §245.20(2) (unequivocally relieving the People of any obligation to obtain materials by subpoena that the defense may thereby obtain). In the process of disclosing several thousands of pages of financial records to Baa and Nunez, copies of Go Daddy and Cash App records in the People’s possession were inadvertently not disclosed to counsel until after trial had begun — even though financial records custodians for Go Daddy and Cash App had been noticed on witness lists served to both defense counsels. Neither defense counsel raised Go Daddy or Cash App records in their previous COC challenges before Justice Chun, even though transactions to Go Daddy and Cash App had been shown in other financial records disclosed to the defense. Accordingly, the Court fails to see good cause to permit another COC challenge on these grounds. See CPL §255.20(3) (requiring the filing of all pre-trial motions at once, unless a new motion is filed “upon grounds of which the defendant could not, with due diligence, have been previously aware, or which, for other good cause, could not reasonably have been raised within the period specified”). Where there is a late disclosure, the court shall impose a remedy or sanction “that is appropriate and proportionate to the prejudice suffered” by the party entitled to the disclosure. CPL §245.80(1)(a). The statute indicates that the remedy of dismissal of charges due to a prosecutor’s failure to adhere to a discovery order should only occur where, “after considering all other remedies, dismissal is appropriate and proportionate to the prejudice suffered by the party entitled to disclosure.” CPL §245.80(2). In the present case, the Court made a determination that, in light of the fact that all parties were previously on notice of such records existing and the belated objections to their introduction, along with the possible prejudice faced to Baa and Nunez for their belated disclosure, that the appropriate remedy would be the delayed introduction of records custodians from Go Daddy and Cash App at trial so that defense counsels had a meaningful opportunity to review the records. The Court also required the People to end their case with a records custodian rather than a close friend of Rose Kane’s close friend, who knew Nunez. Therefore, the belated disclosure of these records does not render the case reversible as a matter of law, and the motion is denied on these grounds. 4. Prejudice From the Use of a “Silent Indictment” Nunez argues that the use of a silent indictment renders the case reversible as a matter of law due to unfair prejudice. A silent indictment (also known colloquially in Kings County as an “X-indictment”) is a term used to describe an indictment filed by a grand jury “against a defendant who has never been held by a local criminal court for the action of such grand jury with respect to any charge contained in such indictment.” CPL §100.05. Such indictments are permissible due to the plain statutory language of CPL §190.50(5)(a), which states that a prosecutor “is not obligated to inform…a person that…a grand jury proceeding against him is pending, in progress, or about to occur unless such person is a defendant who has been arraigned in a local criminal court upon a currently undisposed of felony complaint” (emphasis added). See also People v. Munoz, 207 A.D.2d 418, 419 (App. Div. 2d Dept. 1994). A prosecutor’s discretion is curbed by the requirement that the People may not intentionally delay an arraignment for the purpose of depriving the accused of his statutory rights under CPL §190.50(5)(a). See People v. Martin, 132 A.D.3d 909, 910 (App. Div. 2d Dept. 2015); People v. Brooks, 247 A.D.2d 486 (App. Div. 2d Dept. 1998). In the absence of an arraignment, the People were not obligated to serve Nunez with the requisite CPL §190.50(5)(a) notice, and there is no indication in the record that the People intentionally delayed his arraignment to avoid serving such a notice. Therefore, the use of a silent indictment in the instant matter was appropriate and does not require reversal as a matter of law. 5. Redundant Witnesses Baa argues that the allowance of testimony by Kings County District Attorney Financial Analysis Ludwig Sanchez and United States Secret Service Agent Jonathan Peck denied him a fair trial and renders the instant case per se reversible. This Court disagrees, as these individuals were presented in order to admit demonstrative exhibits to aid the jury. Charts and other demonstratives prepared by witnesses with a specialized knowledge are routinely allowed into evidence by courts in order to summarize voluminous or complicated evidence, so long as there are no conclusions, interpretations, or comparisons expressed therein. See, e.g. People v. Brown, 13 N.Y.3d 332, 340 (2009); People v. Abuziyad, 136 A.D.3d 837, 837- 8 (App. Div. 2d Dept. 2016) (admitted DNA reports were not “testimonial” in nature and the OCME analyst who created the reports testified subject to cross-examination at trial). In the present case, the witnesses who testified laid a foundation about their experience investigating financial crimes and presented self-made demonstratives to the jury to help clarify specialized financial knowledge not within the ken of an average juror. Further, counsels for Baa and Nunez were given ample opportunity to cross-examine both witnesses, and any improperly considered “prestige” from Agent Peck, a US Secret Service Agent, was mitigated by a jury charge vetted by both the defense and prosecution. 6. False Statements in the People’s Opening Statement Nunez next argues that various statements made during the People’s opening were so patently false that the case is reversible as a matter of law. This claim is not cognizable under CPL §330.30, as the issues raised by Nunez are purely factual in nature and not matters of law. A trial court does not have inherent ability to set aside a verdict and is limited strictly to the grounds enumerated in CPL §330.30. Given that CPL §330.30(1) authorizes trial courts to set aside a guilty verdict only if the grounds in the motion would mandate as a matter of law that an appellate court reverse or modify the verdict, this Court cannot supplant the role of the jury as factfinder. This is precisely the type of factual review that this trial court cannot, and will not, conduct to resolve a claim under CPL §330.30(1). 7. Improper Statements During Summation Nunez next contends that he was deprived of a fair trial by certain improper remarks made by the prosecutor during the People’s summation. A prosecutor’s summation is proper so long as it “[is] within the broad bounds of rhetorical comment permissible in closing arguments, constituted a fair response to arguments made by defense counsel in summation, or constituted fair comment on the evidence.” People v. Morales, 201 A.D.3d 819, 819-20 (App. Div. 2d Dept. 2022) (internal citations omitted); see also People v. Almonte, 23 A.D.3d 392, 394 (App. Div. 2d Dept. 2005). To the extent that any improper remarks were made, courts must also consider whether the commentary was “so flagrant or pervasive as to have deprived the defendant of a fair trial.” People v. Rodriguez, 199 A.D.3d 838 (App. Div. 2d Dept. 2021); see also People v. Reeves, 180 A.D.3d 936 (App. Div. 2d Dept. 2020); People v. Coleman, 148 A.D.3d 717 (App. Div. 2d. Dept. 2017). To determine whether an individual has been deprived of a fair trial, appellate courts essentially utilize a harmless error analysis, determining whether evidence of guilt was “overwhelming” and whether there was “significant probability that the errors might have contributed to the defendant’s conviction.” People v. Quezada, 116 A.D.3d 796, 798 (App. Div. 2d Dept. 2014). This Court looks to three cases for instruction on the propriety of specific statements in the case at bar. First, in People v. Alfaro, the prosecutor “repeatedly stated that the presumption of innocence was ‘gone’ or ‘vanquished’.” 260 A.D.2d 495, 496 (App. Div. 2d Dept. 1999) (internal citations omitted). The summation also “infer[red] guilt from the fact that the defendant had a lawyer at the time he surrendered to police, denigrated the defense, and implied that the defendant’s guilt could be inferred from his mere presence at the scene.” Id. Further, despite the defendant having “a lot of rights,” the prosecutor in Alfaro also improperly instructed the jury that the victim, too, had rights that must be considered. See id. Alfaro’s conviction was reversed on other grounds, but the court took care to admonish the prosecutor for the improper commentary. See id. In another example, People v. Bussey, the prosecutor’s closing remarks included disparaging the “so-called presumption of innocence” and implying that reasonable doubt was “taking the easy way out.” 62 A.D.2d 200, 204 (App. Div. 1st Dept. 1978). In addition to the numerous instances of improper commentary during summation, the prosecutor inappropriately questioned several witnesses, claiming to one witness that “you were told what to remember…by [the defendant's] lawyer; isn’t that not a fact?”. Id. at 202. Then, while the defendant was cross-examined, the prosecutor attempted to inquire into privileged conversations between the accused and his defense counsel. Id. The First Department unanimously overturned the conviction in Bussey solely on the grounds of the prosecutor’s improper conduct, holding that “[n]o curative instruction could suffice to counteract the cumulative effect of the highly prejudicial and inflammatory statements by the prosecutor, which, in the words of the trial justice, demonstrated ‘a complete lack of knowledge’ and ‘insensitivity to the basic rights’ of a defendant in a criminal trial.” Id. Finally, in People v. Ashwal, during a trial for drug sales, the prosecutor’s summation included an insinuation that an informant had been killed by the defendant as retaliation for his arrest. N.Y.2d 105 (1976). Although defense counsel objected to the comment, the trial court held that the remark was proper rhetoric and overruled. Id. However, the Court of Appeals held that the comment was so “utterly gratuitous” that, under the circumstances, it “could only have served to blur the issues and prejudice the jury against the accused.” Id. at 111. A new trial was ordered for the prejudicial impact of this single comment, but the Court of Appeals did caution that: [T]he court might have dissipated the prejudice by promptly and clearly advising the jury that the comments were improper and must be completely disregarded. But when, as here, the court overrules the defendant’s objections, and gives ‘standing to the statement of the District Attorney as legitimate argument’, the possibility of prejudice is greatly enhanced. Then the court has indicated to the jury that…with the court’s sanction, they may pursue the line of reasoning suggested by the prosecutor in determining the defendant’s guilt. Id. (internal citations omitted). Upon review, the Court finds that the prosecutor’s remarks during summation were not so inflammatory, flagrant, or pervasive that Baa or Nunez were deprived of a fair trial. In fact, the commentary was appropriately rhetorical in nature or responsive to specific arguments raised in defense counsel’s closing. 8. Stipulated Records from Rose Kane’s Guardianship Proceeding Finally, both Baa and Nunez argue, without the support of case law, that they were denied a fair trial due to limitations placed on which records from Rose Kane’s civil guardianship proceeding could be admitted through stipulation. The parties had initially stipulated to all of Rose Kane’s guardianship proceeding coming into evidence — however, the stipulation was later amended with the cooperation and consent of both parties to include a list of those records selected by the defense. Both parties now claim that they were prejudiced because of curtailed cross-examination of witness Stacy Jacob based upon the People originally stipulating to admitting the entire guardianship file. Neither Baa nor Nunez sought, however, to recall Stacy Jacob once the stipulation was finalized with limited guardianship proceeding records, and as such, any prejudice is speculative and has not been appropriately preserved for consideration by this Court on a §330.30 motion. CONCLUSION To the extent that there are any other claims pursuant to CPL §330.30, they are denied as meritless. Accordingly, for the reasons enumerated above, the motion to set aside the verdict is denied. Baa and Nunez are reminded that they must stand ready for sentence on Tuesday, July 16, 2024 in Part 25. Dated: July 16, 2024
