DECISION AND ORDEROmnibus Motion Defendant, Leroy Brooks, has submitted an omnibus motion, dated March 20, 2018, seeking: a Bill of Particulars and discovery; inspection and release of the Grand Jury minutes and reduction or dismissal of the indictment; suppression of physical evidence; suppression of statement evidence; disclosure of vicious or immoral acts and a Sandoval hearing; and the reservation of rights to make further motions. The People’s response, dated May 7, 2018, opposes the relief sought, furnishes to defendant some items of particularization and discovery, and demands reciprocal discovery. The Court decides the motion as follows.The branches of the motion seeking a Bill of Particulars and discovery are granted to the extent provided by the People pursuant to CPL 240.20 and CPL 200.95.The branches of the motion seeking to inspect the Grand Jury minutes and dismiss or reduce the indictment are granted only to the extent that the Court has inspected the minutes of the Grand Jury. The Court finds that the evidence adduced before the Grand Jury was legally sufficient to sustain all counts of the indictment. Moreover, the District Attorney properly instructed the Grand Jury on the relevant law (see People v. Calbud, Inc., 49 NY2d 389 [1980]).In particular, the People have outlined in their response that they conducted a hearing, on the record, made outside the presence of the grand jurors, before determining the admissibility of certain out-of-court statements made by the complainant in this case. The hearing consisted of the testimony of a custodian of Department of Correction records concerning certain telephone calls made to the complainant by the defendant in violation of a full order of protection, as well as testimony of an Assistant District Attorney as to the complainant’s initial cooperation with the People, and then her repeated failures to respond to phone calls and subpoenas to secure her testimony before the Grand Jury. After that evidence was recorded in the minutes, an Assistant District Attorney made the legal determination that pursuant to certain case law, cited in the minutes, prior statements of the complainant would be admissible before the Grand Jury based on the defendant’s misconduct.There is no question that the District Attorney, pursuant to statute and case law, is the legal advisor of the Grand Jury. (CPL 190.25[6]; People v. DiFalco, 44 NY2d 482 [1978]; Matter of Hynes v. Moskowitz, 44 NY2d 383 [1978]; In re S, 83 AD2d 630 [2nd Dept 1981], reversed on other grounds 55 NY2d 116 [1982][reversed based on off-the-record promises made to the defendant during plea bargain negotiations]). The District Attorney determines the competency of a witness to testify and the admissibility of evidence, and must instruct the Grand Jury on the legal significance of the evidence. (CPL 190.30[6] and [7]; People v. DiFabio, 79 NY2d 836 [1992]; People v. DiFalco at 486-489).The criminal trial rules of evidence apply to grand proceedings. (CPL 190.30; People v. Mitchell, 82 NY2d 509 [1993]). Although courts discourage saddling grand juries with “mini-trials and preliminary showings” that would impede a fair and expeditious investigation (United States v. Dionisio, 410 US 1, 17 [1973]; People v. Adams, 81 Misc 2d 528 [Sup Ct, NY Cty 1975, Roberts, J.][declining to require a Sandoval hearing prior to defendant testifying in the Grand Jury]), the Assistant District Attorney instructed the Grand Jury that a pre-Grand Jury hearing had been conducted and that, as a result of that hearing, the grand jurors could consider hearsay evidence which would not otherwise be admissible. The Court has reviewed the minutes of the pre-Grand Jury hearing and the legal findings of the Assistant District Attorney who conducted the hearing and finds that the admission of out of court statements was proper. (People v. Bernazard, 50 Misc 3d 1209[A] [Sup Ct, Queens Cty 2015]; People v. Moye, 51 Misc 3d 1216[A] [Sup Ct, Queens Cty 2016]; People v. Turnquest, 35 Misc 3d 329 [Sup Ct, Queens Cty 2012]). Specifically, a defendant’s right to assert the rules against hearsay can be forfeited if his own misconduct renders a witness unavailable to testify at trial. (United States v. Mastrangelo, 693 F. 2d 269 [2nd Cir 1982], cert denied 456 US 973).1 Any other result would mock our system of justice. (Id. at 273). Included in witness intimidation is the use of a relationship in which a defendant has a controlling or coercive effect on the witness. (People v. Byrd, 51 AD3d 267 [1st Dept 2008]). This is especially true in domestic violence cases, as this one is. (see People v. Santiago, 2003 NY Slip Op 51034[U], 2003 NY Misc LEXIS 829 [Sup Ct, NY Cty 2003, Atlas, J.]). New York State has adopted this rule to protect the integrity of the adversarial process and to deter litigants from tampering with witnesses who may testify adversely to them. (People v. Geraci, 85 NY2d 359 [1995]). Although such a hearing is usually conducted by a judge prior to trial and not prior to the grand jury presentation, the same important principles apply to prevent the tampering with witnesses and to protect the integrity of the process.Further, to the extent that defendant alleges other defects in the presentation of the case to the Grand Jury, the Court finds that the presentation was not defective as a matter of law. The minutes reveal that a quorum of the grand jurors was present during the presentation of evidence and at the time that the District Attorney instructed the Grand Jury on the law. No unauthorized person within the meaning of CPL 190.25 was present at any time during the proceedings (see People v. Sayavong, 83 NY2d 702 [1994]). And, no irregularity that would impair the integrity of the Grand Jury occurred (see People v. Adessa, 89 NY2d 677 [1997]; People v. Huston, 88 NY2d 400 [1996]). Moreover, release of the Grand Jury minutes is denied since defense counsel has failed to demonstrate any compelling need for such action and the Court is able to determine the motion without assistance. (see CPL 210.30[3]).The branch of the motion seeking suppression of physical evidence is granted to the extent that a Mapp / Dunaway hearing will be held prior to trial.The branch of the motion seeking suppression of statement evidence is granted to the extent that a Huntley hearing will be held prior to trial. The Court notes that that People consented to a Huntley hearing.The People are directed to make every effort to preserve Rosario material as well as all 911 calls, radio runs, sprint reports, surveillance footage, and any other recordings that are relevant to this case and make them available to the defendant at the appropriate time as prescribed by CPL 240.20. (see People v. Rosario, 213 NY2d 286 [1961]; People v. Consolazio, 30 NY2d 446 [1976]). The branch of the motion seeking all Brady material is granted to the extent that the Court reminds the People of their obligations under Brady v. Maryland, 373 US 83 (1963).The branch of the motion seeking the disclosure of defendant’s prior uncharged criminal, vicious or immoral acts and a Sandoval hearing is reserved for the trial court. (see People v. Sandoval, 34 NY2d 371 [1974]; Luck v. United States, 348 F2d 763 [DC Cir 1965]; People v. Ventimiglia, 52 NY2d 350 [1981]).The branch of the motion reserving the right to make further motions is granted to the extent permitted by CPL 255.20.The People’s request for reciprocal discovery is granted pursuant to CPL 240.30.This constitutes the decision and order of the Court.Dated: Queens, New YorkJune 15, 2018
