DECISION AND ORDER OF THE COURT Decision on Omnibus Motion The defendant, Walter Aroca, has submitted an omnibus motion, dated January 10, 2023, seeking: bill of particulars; inspection of the grand jury minutes and dismissal or reduction of the indictment; suppression of evidence; preclusion of evidence; pre-trial voluntariness hearings; bill pf particulars; Sandoval/Ventimiglia/Molineux relief; and leave to file further motions. The People’s response, dated January 23, 2023 consents to some of the relief sought and opposes other relief. The court decides the motion as follows. INSPECTION AND DISMISSAL OR REDUCTION The 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. Upon inspection of the grand jury minutes and the exhibit, this court found the evidence to be legally sufficient to support all counts of the indictment except for count two. Moreover, the instructions were defective as a matter of law as to counts one and two of the indictment. Count one charges Driving While Intoxicated as a D felony (VTL §1192[3]). Pursuant to VTL §1193(1)(c)(ii), this offense qualifies as a D felony where a defendant has two prior convictions within the previous 10 years of any violation of subdivisions 2, 2-a, 3, 4 or 4-a of VTL §1192. To establish the two necessary prior convictions, the prosecutor introduced documentary evidence: the defendant’s driving abstract and a certificate of disposition. The driving abstract indicated the defendant had been convicted on July 16, 2012, of violating VTL §1192(3).1 The certificate of disposition indicated that the defendant had been convicted on January 4, 2017, of violating VTL §1192(2-a). In his final instructions with respect to count one of the indictment the prosecutor instructed the Grand Jurors in relevant part, “If the defendant has within the previous ten years been convicted of Vehicle and Traffic Law Section 1192, 1192-2A, 1192-3, 1192-4, or 1192-4A or of the Penal Law Section, excuse me. These previous convictions elevate the crime of driving while intoxicated to a higher crime.” 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 sufficient evidence to establish the material elements of the crime.” (Id.) The prosecutor’s instruction as to count one was defective because it failed to apprise the Grand Jury that the two prior convictions within the previous ten years of any violation of subdivisions 2, 2-a, 3, 4, or 4-a VTL §1192 would elevate the crime of driving while intoxicated, as charged in count one, to a class D felony. Because the instruction given to the Grand Jury was incomplete and lacked sufficient information as the nature of the charge they were asked to consider, the Grand Jury could not properly determine that the charge of driving while intoxicated, as charged in count one, should have been deemed a class D felony. (see People v. Keller, 214 AD2d 825 [3rd Dept 1995].) Although the instruction was improper for the reason noted, the evidence before the Grand Jury was legally sufficient to establish the charge of driving while intoxicated (VTL §1192[3].) Accordingly, count one of the indictment is reduced from the class D felony driving while intoxicated to the unclassified misdemeanor driving while intoxicated with leave to re-present to another grand jury. Count two charges Aggravated Unlicensed Operation of a Motor Vehicle in the First Degree (VTL §511[3][a][iii]. A defendant is guilty of that offense when he “commits the offense of aggravated unlicensed operation of a motor vehicle in the third degree while under permanent suspension as set forth in subparagraph twelve of paragraph (b) of subdivision two of section eleven hundred ninety-three of this chapter.” VTL §1193(2)(b)(12) states, [W]henever a revocation is imposed upon a person for the refusal to submit to a chemical test pursuant to [VTL §1194] or conviction for any violation of [VTL §1192] for which a sentence of imprisonment may be imposed, and such person has: (i) within the previous four years been twice convicted of any provisions of [VTL §1192] or a violation of the penal law for which a violation of [VTL §1192] is an essential element and at least one such conviction was for a crime, or has twice been found to have refused to submit to a chemical test pursuant to [VTL §1194], or has any combination of two such convictions and findings of refusal not arising out of the same incident; or (ii) within the previous eight years been convicted three times of any provision of [VTL §1192] for which a sentence of imprisonment may be imposed or a violation of the penal law for which a violation of [VTL §1192] is an essential element and at least two such convictions were for crimes, or has been found, on three separate occasions, to have refused to submit to a chemical test pursuant to [VTL §1194], or has any combination of such convictions and findings of refusal not arising out of the same incident, such revocation shall be permanent. The evidence before the Grand Jury failed to establish that the defendant was subject to a permanent revocation for any reason. The defendant’s DMV abstract, which was introduced as an exhibit, states only that the defendant’s license was revoked — not that this revocation was permanent. Moreover, while the abstract does note that the defendant has two driving-while-intoxicated-related convictions, which occurred on July 16, 2012, and January 4, 2017, respectively.2 Plainly, none of those convictions occurred within the previous four years of each other. Further, the proof of mailing that accompanies the defendant’s abstract, dated July 25, 2012, states, “Your New York State driver license will be revoked effective 08/05/2012 for at least one year.” It also specifies, “Cause: convicted on 07/16/2012 in the above court on a charge of driving with .08 percent or more alcohol in blood.” The abstract and proof of mailing shows that DMV never imposed a permanent revocation on the defendant. Thus, there was insufficient proof that the defendant’s was driving while subject to a permanent revocation. In addition to a lack of proof, the instruction as to count two was also defective. In his instruction to the Grand jurors, the prosecutor stated: “A person is guilty of Aggravated Unlicensed Operation of a Motor Vehicle in the First 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 511 of the Vehicle and Traffic Law and is operating the motor vehicle while under permanent revocation as set forth in subparagraph 12 , excuse me, which is set forth in subparagraph 12 of subparagraph subdivision two of Section 1193 of the Vehicle and Traffic Law.” The prosecutor simply referred to the statutory provisions of §§511(1) and 511(3)(a)(iii) of the VTL without reading the relevant subdivisions and subparagraphs to the Grand Jurors to apprise them on which theory the prosecution relies and deprived the Grand Jury of the means “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.” Calbud at 394-94. Accordingly, count two of the indictment is dismissed with leave to re-present to another grand jury. As to count three that charges Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree (VTL §511(2)(a)(ii), it cannot be determined, given the evidence before the Grand Jury that the defendant had two prior convictions for driving while intoxicated, whether the finding by the Grand Jury supporting count three was based upon their finding of the defendant’s prior conviction for driving while intoxicated on July 16, 2012 or on January 4, 2017. Therefore, count three is duplicitous for this reason. The People are directed to file a supplemental bill of particulars specifying which of the defendant’s prior convictions for driving while intoxicated they intend to rely upon to support count three. The defendant also makes several arguments in his motion that the indictment should be dismissed because it was obtained on the basis of prosecutorial misconduct and improper opinion testimony. After Ms. Mendez-Rodriguez reaffirmed her testimony that the defendant crashed his vehicle into a series of parked car at 12.25 a.m. on March 18, 2022, the prosecutor asked if she was aware of any holidays that fell on March 18th. She said, “St. Patrick’s Day.” The prosecutor then asked her “In reference to the 18th of March, what is Saint Patrick’s Day?” The witness told the prosecutor St. Patrick’s Day had concluded; the crash occurred the following day. The defendant contends these questions by the prosecutor were “inappropriate and invited the jury to speculate that the defendant was also drinking.” (Affirmation of defendant’s counsel at 15) and has moved to dismiss the indictment on the basis that the integrity of the grand jury was compromised. The People, in their response to the defendant’s omnibus motion, did not address the defendant’s argument that the prosecutor, by raising the negative stereotype of excessive drinking that is often associated with St. Patrick’s Day, invited the grand jury to decide this case on an improper basis. In grand jury proceedings, prosecutors “enjoy wide discretion in presenting their case.” (People v. Lancaster, 69 NY2d 20, 25 [1986]). Nonetheless, “[P]rosecutors occupy a dual role as advocates and as public officers and, as such, they are charged with the duty not only to seek convictions but also to see that justice is done. In their role as public officers, they must deal fairly with the accused” (People v. Steadman, 82 NY2d 1, 7 [1993]). The prosecutor’s duty of fair dealing to the accused extends to pre-trial proceedings, including the presentation of evidence to the grand jury. (People v. Pelchat, 62 NY2d 97, 105 [1984].) Numerous courts have condemned references by prosecutors to racial stereotypes, (see People v. Hearns, 18 AD2d 922, 923 [2nd Dept 1963][prosecutor in summation of robbery prosecution impermissibly argued racial similarity of defendant and eye witness as basis for reliability of witness's identification]; People v. Thomas, 129 AD2d 596, [2nd Dept 1987][prosecutor impermissibly argued a black defendant in a black neighborhood could not conceivably be the victim of a crime committed by a white man]; People v. Rivera,136 AD2d 520 [1st Dept 1988][prosecutor impermissibly urged jury to find her witnesses credible because a white person in Spanish Harlem was more likely to be a victim of a crime at the hands of a Hispanic]); to gender stereotypes, (see People v. King, 27 NY3d 147 [2017][prosecutor's use of gender stereotypes --- "only a woman would inflict this kind of beating"- in an assault prosecution]; to sexual orientation stereotypes, (see People v. De Vito, 21 AD3d 696, [3rd Dept 2005][prosecutor's repeated references to defendant's homosexuality in prosecution of crime of course of sexual conduct against a child]; to religious stereotypes, (see Malinski v. New York, 324 US 401, 434 [1945][the prosecutor's reference of defendant's neighborhood --- the lower east of Manhattan 'where your life is not worth a pretzel' --- as a proxy to appeal to religious bigotry]; to nationality, (see Korematsu v. United States, 32 US 214, 240 [1944][claim of individual disloyalty based on nationality]), because an argument based on a stereotype creates the danger that jurors will not evaluate the case strictly on the basis of the evidence presented but instead from the biases presented by the improper question or argument. The concerns that underlie these cases are no less applicable to a prosecutor’s use of a contextual stereotype such as was used in this case to encourage the factfinder to decide the case on a false supposition. Here, the prosecutor’s question as to the witness’s awareness or knowledge of any holiday associated with March 17th and its significance was irrelevant to any issue presented in this case. The witness had already established the date and time of the crash. She clearly did not have a memory lapse that required the prosecutor to reference a prominent date like St. Patrick’s Day to jog her memory. (GJ tr at 5) Nor was there any evidence in the record that suggested the defendant was involved with any event or person connected with any activity associated with St. Patrick’s Day. Thus, there was no legitimate reason for the prosecutor to raise the date of St. Patrick’s Day with Ms. Mendez-Rodriguez but to evoke the stereotypical association of excessive consumption of alcohol on St. Patrick’s Day and inject into the Grand Jury’s deliberations that the defendant was also drinking because on March 17th happened to be St. Patrick’s Day and in doing so compromised his obligation of dealing fairly that he owed to the defendant.(Pelchat at 105.) Nonetheless, in a case as this with overwhelming evidence of the defendant’s guilt, the exchange between the prosecutor and the witness on this nonsensical issue was isolated and brief and did not rise to the level that it impaired the integrity of the grand jury process. (see People v. Dominguez, 275 AD2d 468, [2nd Dept 2000][references to defendant's ethnicity did not constitute a thematic reference to race as to warrant reversal].) The defendant contends that the opinion testimony elicited from Ms. Mendez-Rodriguez was improper because it lacked sufficient factual foundation from which she could offer an opinion as to the defendant’s intoxication. The relevant exchange between the prosecutor and Ms. Mendez-Rodriguez follows: Q. And when you were speaking with the driver of the vehicle where was he? A. When I was speaking to him (sic) he was — um, when I left the building while recording, he was outside of his vehicle to the back, he was leaning against it. So you can tell that he was the -um, intoxicated. Q. In your normal life do you interact with people who are drunk or intoxicated? A. Yes. Q. How many times in your life if you can put a number on it would you say you have interacted for people intoxicated? A. A number? Q. Hundreds, thousands? A. Probably around a hundred because I have Latinos we have drinking parties, uncle drinks, all my cousins drink. So I know what a drunk person looks like, I grew up around it. The prosecutor erred by permitting Ms. Mendez-Rodriguez to offer a lay opinion without providing a proper foundation. All Ms. Mendez-Rodriguez offered as to her observation of the defendant’s intoxication was that “he was leaning against [his vehicle][,] so you can tell that he was the — intoxicated.” Opinion testimony from a lay witness is admissible where: (1) it “is rationally based on the witness’s personal perception; (2) it “is within the ambit of common experience or that of a particular witness;” and (3) it “would be helpful to the finder of fact in understanding the witness’s testimony or in determining a fact in issue, especially when facts cannot be stated or described in such a manner as to enable the finder of fact to form an accurate judgment about the subject matter or of the opinion or inference.” (Guide to NY Evid rule 7.03, Opinion of Lay Witness). Here, the People failed to lay a proper factual predicate for this opinion evidence by establishing the observations and demeanor of the defendant on which the witness based her opinion. If the People had wished for Ms. Mendez-Rodriguez to give an opinion on the defendant’s intoxication, they could have laid a proper foundation by eliciting information about her observations, i.e., odor of alcohol, slurry of speech, balance, bloodshot, watery eyes, of the defendant that caused her to form an opinion that he was intoxicated. However, the People failed to establish a sufficient description of the defendant’s demeanor and conduct. Thus, it was error for the prosecutor to elicit opinion testimony from Ms. Mendez-Rodriguez. Nevertheless, this error did not impair the integrity of the grand jury proceedings. The Grand Jury also had available to it the testimony of Police Officer Cameron Wilken who also observed the defendant and described his conduct and demeanor in sufficient detail as to permit his opinion testimony to be properly received. In addition, the Grand Jury also viewed for themselves the video tape taken of the defendant by Ms. Mendez-Rodriguez and on which they could base their own judgment. The defendant’s motion to dismiss or reduce the indictment is, therefore, denied, except to the extent that count one is reduced to an unclassified misdemeanor of driving while intoxicated and count two is dismissed. As to counts one and two, the People have leave to re-present both counts to a different grand jury. MOTIONS TO SUPPRESS The defendant’s motion to suppress tangible and non-tangible evidence, including field sobriety tests, post-seizure observations by any police officers and testimony related thereto, coordination tests, Intoxilyzer test results and video recordings related thereto of the defendant is granted to the extent that a Mapp/Dunaway hearing is ordered. At the hearing, the court will determine whether the police had reasonable cause to believe that the defendant had been operating a motor vehicle while intoxicated (VTL §1194[2][a][1]. The defendant’s motion for an order requiring the People to produce the evidence at issue, if any, at the hearing is denied. If the defense wants to inspect the property prior to trial, the People are hereby ordered to arrange a mutually convenient time to do so with defense counsel. (CPL §245.20[1][m]["There is also a right to inspect, copy, photograph and test the listed tangible evidence (obtained from, or allegedly possessed by, the defendant)."].) The defendant has also moved for suppression of the identification procedure in this case or, in the alternative, a Wade/Dunaway hearing, alleging that the identification procedure was suggestive. The People affirm that Katherine Mendez-Rodriguez observed the defendant, first from her fifth floor bedroom window and later from the street while the defendant was standing next to his vehicle. Ms. Mendez-Rodriguez’s attention was drawn to the street upon hearing a vehicle crashing into other vehicle. From the bedroom window vantage, she saw the defendant, first through her own visual observation and then through the viewfinder of her camera when she recorded the defendant while still in his vehicle. She later went to the street and observed the defendant again, standing next to his vehicle before the arrival of the police. 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 Ms. Mendez-Rodriguez and Police Officer Cameron Wilken whether Ms. Mendez-Rodriguez pointed out the defendant before or after the defendant was detained by Police Officer Wilken and whether Police Officer Wilken spoke to Ms. Mendez-Rodriguez before or after he detained the defendant. Accordingly, the defendant’s motion is granted to the extent that the Wade/Dunaway 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 his refusal to submit to the breath test is granted to the extent that a hearing is ordered. (see People v. Cruz, 134 Misc2d 115 [Crim Ct, New York County 1986].) At the hearing, the court will determine whether the police officer had reasonable grounds to believe that the defendant had been operating a motor vehicle while intoxicated VTL §1194[2][a][1]; was the request to submit to such tests made within two hours of the arrest (VTL §1194[2][a][1]; was the defendant given sufficient warning, in clear and unequivocal language of the effect of such refusal (VTL §1194[2][b][1],[f]; and was the defendant’s refusal to take the test persistent (VTL §1194[2][b][1],[f]). The People did not response to this portion of the defendant’s omnibus motion. PRE-TRIAL VOLUNTARINESS HEARINGS The defendant’s motions for pretrial hearings to determine the voluntariness of (1) any unnoticed statements made to the police that the People intend to use for impeachment purposes, and (2) any unnoticed statements he may have made to civilians that the People intend to introduce at trial, is denied as premature. If it becomes clear that any such statements exist, the defendant has leave to move for such hearings at that time. Should the People become aware of such statements, they are directed to inform the defendant in a timely manner. PRECLUSION OF EVIDENCE The defendant’s motion to preclude unnoticed statement(s) evidence is denied as premature, as the People have not indicated that any such statements or procedures exist. Should the existence of such evidence come to light, the defendant is granted leave to move for its preclusion at that time. BILL OF PARTICULARS The defendant’s motion for an order compelling a bill of particulars is denied as moot, as the People have provided one with their omnibus response. BRADY/VILARDI MATERIAL As to the Brady/Vilardi demand, the People are remined of their continuing duty to provide evidence or information that is favorable to the defendant and referred to the court’s standing Brady order, which appears below. SANDOVAL/VENTIMIGLI/MOLINEUX 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/Ventimiglia/Molineux 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: March 17, 2023
