The People of the State of New York v. Jaime Delgado, Defendant. (2025)

The defendant, Jaime Delgado, submitted an omnibus motion, dated February 24, 2025, seeking: a ruling finding good cause to excuse his late filing of his omnibus motion; inspection of the Grand Jury minutes and dismissal or reduction of the indictment; dismissal of the indictment pursuant to CPL § 30.30; confirming the lower court's suppression decision; pre-trial voluntariness hearings, preclusion of evidence, several discovery related orders; Brady/Vilardi material; Sandoval Relief and leave to file further motions.¹ The People's response, dated April 1, 2025, consents to some of the relief sought and opposes other relief. The court decides the motion as follows:

MOTION FOR GOOD CAUSE

This court on November 21, 2024, set a motion schedule that required the defendant to submit his omnibus motion on January 6, 2025, and the People to submit their response papers on January 27, 2025. On February 24, 2025, the defendant filed his motion, one day before the case was adjourned for decision on his motion. During the interim, the defendant did not request an extension. In her papers, the defendant's attorney explained her delay in submitting client's motion was "due to [her] engagement in other cases, and an error by [her] in regards (sic) to filing." (affirmation by defendant's attorney ¶ 17) This vague excuse, in this court's view, does not constitute good cause.

In order for a trial court to function effectively, the parties are obligated to honor court-imposed deadlines (see Miceli v State Farm Mut. Auto Ins. Co., 3 NY3d 725, 726 [2004] [deadlines "are not options, they are requirements, to be taken seriously by the parties."]) In Queens Supreme Court, Criminal Term, extensions of time to file motions or submit responses thereto are liberally granted, and some lapses, both on the part of the defense and the People, are overlooked. Since there was only one instance of an untimely filing by the defense attorney in this case, this case is distinguishable from People v Walsh, 176 Misc 2d 144, 148 (Crim Ct NY Cty 1997) where repeated untimely filings were deemed more than "an isolated lapse." In Walsh, the court granted dismissal on default pursuant to CPL § 30.30, since, unlike here, it involved ' "the fourth time, in spite of repeated, strongly worded admonitions, that the assistant district attorney assigned to the case ha[d] failed to obey a court-ordered deadline." Id. at 145. Nevertheless, excusing tardiness in the interest of justice "should not be expected in . . . routine situations." (see People v Amadeo, 188 Misc 2d 187, 192 (Sup Ct Queens Cty 2001) This court views defense counsel's failure to timely submit her motion as an oversight and will dispose of the motion on its merits. (see People v Lora, 177 AD3d 518, 520 [1st Dept 2019] ["[i]t is axiomatic that justice is best served when cases are decided on the merits."].)

DISMISSAL PURSUANT TO CPL § 30.30

In the indictment, the defendant is charged with Operating a Motor Vehicle While Intoxicated as an unclassified misdemeanor (VTL § 1192[3]). The defendant now moves, pursuant to CPL § 30.30, to dismiss the indictment. The People oppose the defendant's motion in its entirety.

The People must be ready for trial within 90 days from the commencement of a criminal action when the defendant is charged with one or more offenses, at least one of which is a misdemeanor punishable by more than three months in jail (CPL 30.30[1][b].) minus any excludable periods (see CPL § 30.30[4]; People v Cortes, 80 NY2d 201, 208 [1992]). In this case, where periods of both pre-readiness and post-readiness delay are at issue, the determination of whether the People have satisfied their statutory speedy trial obligation "is generally determined by computing the time elapsed between the filing of the first accusatory instrument and the People's declaration of readiness, subtracting any periods of delay that are excludable under the terms of the statute and then adding to the result any post-readiness periods of delay that are actually attributable to the People and are ineligible for exclusion" Cortes, 80 NY2d at 208. Once the defendant has alleged a delay of more than this allowable time, the People have the burden of demonstrating sufficient excludable time in order to withstand a motion to dismiss. (People v Santos, 68 NY2d 859 [1986]; People v Berkowitz, 50 NY2d 333 [1980].)

The defendant asserts three discrete time periods that the People were not ready.

The first period of 26 day is from June 11, 2023, to July 7, 2023. On June 11, 2023, the defendant was arraigned in criminal court on the misdemeanor complaint charging the defendant with Criminal Mischief (Penal Law § 145.00[1]), Operating a Motor Vehicle While Under the Influence of Alcohol as an unclassified misdemeanor (VTL § 1192[3]), and Operating a Motor Vehicle While Ability is Impaired (VTL § 1192[1]). Following the arraignment, the case was adjourned to August 15, 2023 for the People to file a certificate of compliance and statement of readiness. On July 7, 2023, the People announced ready for trial by filing off calendar with the court and serving the defendant with their certificate of compliance and statement of readiness. Thus, the People are charged from June 12, 2023 to July 6, 2023, as the People concede, for a period of 25 days.²

The second period of time is from November 30, 2023 to December 19, 2023, a period of 19 days. On November 30, 2023, the case was scheduled for a suppression hearing. The People answered not ready and requested December 4, 2023. The case was then adjourned to December 19, 2023, for the suppression hearing. Since this is a post-readiness adjournment, the People are charged with only the actual period of adjournment requested. (People v Boumoussa, 104 AD3d 863 [2d Dept 2013]). Thus, the People are charged, as they concede, with the 4 days they requested; the balance of the adjournment is excluded.

The third period of time is from July 15, 2024 to October 15, 2024, a period of 92 days. On June 3, 2024, the case was calendared in JP 1. Both the People and the defendant were ready for trial. JP 1 then transferred the case forthwith to T3 for trial. At T3, the court began a preliminary discussion of the exclusion and admissibility of evidence at trial but recognized that the defendant could not appear later in that afternoon due to child care issues to continue that discussion. (see prosecutor affirmation, exhibit 3, a transcript of proceedings of June 3, 2024) The court then adjourned the case to July 15, 2024, to complete the motions in limine. This adjournment is not chargeable to the People as they were ready to go forward with the trial. In fact, the case was adjourned for the benefit of the defendant. Accordingly, this adjournment is excluded.

On July 15, 2024, after the T3 court made its final ruling on the outstanding motions in limine, the People served CPL § 170.20 notice of their intention to present this case to a grand jury. The court then adjourned the case to JP1 for grand jury action on August 13, 2024. Thus, the People, as they concede, are charged for the period between July 15, 2024 to August 13, 2024, a total of 29 days is charged to the People.

On August 13, 2024, the People informed the court that the case still had not been presented to the grand jury and requested the case be adjourned to August 20, 2024, for grand jury action. On August 20, 2024, the People informed the court that the home of their sole witness, Detective Abrams, had collapsed on August 18, 2024, as a result of a flash flood and he and his family's home was rendered uninhabitable. As a consequence, Detective Abrams took leave from the Police Department to situate his family while he repaired his home to the point it was habitable and safe for his family. The court adjourned the case to September 17, 2024, to determine the availability of Detective Abrams to appear before the grand jury. On September 17, 2024, the People informed the court they had been in continuous contact with Detective Abrams August 20, 2024 and learned he would return to duty on Sunday, September 22, 2024 and would appear before the grand jury on September 23, 2024. The court then adjourned the case to September 23, 2024, as requested by the People. Detective Abrams testified before the grand jury on September 23, 2024. The People now move to exclude the time from August 20, 2024 to September 23, 2024, as a delay caused by exceptional circumstances pursuant to CPL § 30.30(4)(g)(i).

CPL § 30.30(4)(g)(i) provides that a period of delay occasioned by exceptional circumstances resulting from a continuance requested by the People because of the unavailability of evidence material to the People's case must be excluded, when the People have exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will become available in a reasonable period of time. While "[t]here is no precise definition of what constitutes an exceptional circumstance . . . 'as the Legislature' could not anticipate every situation that might warrant tolling of the speedy trial time period (see People v Blacks, 153 AD3d 720, 723 [2d Dept 2017] [quoting People v Smietana, 9 NY2d 336, 341 [2002]), the unavailability of a necessary witness can constitute an exceptional circumstance that warrants an exclusion of speedy trial time provided that the People have acted with due diligence to make the witness available. (see People v Zirpola, 57 NY2d 706, [1982])

The People's unrefuted representation in the prosecutor's affirmation in opposition to the defendant's motion that Detective Abrams was on leave due to a family emergency is sufficient to support the People's claim for an excludable adjournment. (see People v Alcequier, 15 AD3d 162, 163 [1st Dept 2005]). Here, the People have met that standard. The People have established an exclusion pursuant to CPL § 30.30(4)(g)(i) in that the arresting officer, Detective Abrams, was a necessary witness, he was unavailable as a result of an extreme weather event that rendered his family unable to remain in their home; and "during the period of unavailability, [the People] diligently kept themselves and the court apprised of [his] expected return date." People v Womack, 229 AD2d 304, 304 (1st Dept 1996), aff'd 90 NY2d 974 (1997). Accordingly, the period of time from August 20, 2024 to September 23, 2024 is excluded. However, the period of time from August 13, 2024 to August 19, 2024, a period of 6 days is charged to the People.

On September 23, 2024, following Detective Abrams's testimony before the grand jury, the case was adjourned for grand jury action to November 21, 2024.

In the meantime, the People filed a statement of readiness and a certificate of compliance on October 4, 2024. Thereafter, the People filed a notice of a voted indictment with the court on October 7, 2024. On October 7, 2024, JP1 transferred and adjourned the case to October 15, 2024, for the defendant to be arraigned on the indictment. According to the Notice of Voted Indictment dated October 7, 2024, the defendant was indicted on September 30, 2024. However, the People did not file the indictment with the court until October 7, 2024. Although the People announced their readiness for trial on October 4, 2024, their statement of readiness was illusory since the indictment had not been filed with the court until October 7, 2024. Thus, the time from October 4, 2024 to October 7, 2024, a period of 3 days is charged to the People. (see People v Williams, 32 AD3d 403 [2d Dept 2006]; People v Gause, 286 AD2d 557 [3d Dept 2001]).

According to the defendant, an announcement of readiness is valid only after arraignment on the indictment. Thus, the defendant contends that the time from October 4, 2024, to October 15, 2024, a period of 11 days should be charged to the People. The defendant's contention is rejected. The Court of Appeals in People v Goss, 87 NY2d 792, 794 (1996) held that "where it was possible for the defendant to be arraigned — and the trial to proceed — within [the applicable speedy trial time limitation], a prearraignment statement of readiness was valid."

The defendant also asserts that since the People served a CPL § 170.20 notice, "the prosecution's previous statements of readiness were illusory and in fact the prosecution should be charged the entirety of the time period from the commencement of the criminal action until [the defendant's] arraignment in Supreme Court, more than 490 days." (affirmation of defendant's counsel ¶ 32) This court disagrees. The prosecutor's decision to seek an indictment did not render their prior statements of readiness illusory. (see People v Scaringe, 137 AD3d 1409 [3d Dept]; People v Miller, 113 AD3d 885 [3d Dept 2014]).

The total amount of chargeable time to the People is 67 days, a period that is less than the 90 days speedy trial limitation pursuant to CPL § 30.30 (1)(b). Therefore, the defendant's motion for dismissal of the indictment on speedy trial ground is denied.

MOTION TO SUPPRESS

On January 26, 2024, a Huntley/Dunaway/Refusal hearing was held in Queens Criminal Court. The court issued a decision on the defendant's motion to suppress on February 9, 2024. The court found a lack of probable cause to support the arrest of the defendant for VTL § 1192(3). The court found "[a]ll the fruits flowing from that arrest — including the police's subsequent observations and the alleged refusal to take a chemical test — must be suppressed." People v Delgado, at 6, Crim Ct, Queens County, February 9, 2024, LiCitra, J, docket No. CR-012918-22QN. However, the suppression order did not include the statements made by the defendant and the footage from Detective Abrams' body worn camera, both of which occurred and were made before the defendant's arrest.

Following the conclusion of the suppression hearing, the People sought on July 15, 2024, an adjournment in criminal court on the ground that it intended to present the misdemeanor charges to a grand jury with a view to prosecuting the charges by indictment in Queens Supreme Court. On October 7, 2024, the People filed a notice of a voted indictment thereby divesting the criminal court of jurisdiction. Thereafter, on October 15, 2024, the defendant was arraigned on the misdemeanor indictment.

The defendant now moves to confirm the decision of the suppression court issued on February 9, 2024. In the alternative, the defendant moves for a de novo hearing.

The People assert, without citing any authority, that a new suppression hearing is required because jurisdiction now rests with this court. (affirmation of prosecutor at 12-13)

The Criminal Procedure Law (CPL) outlines specific procedures to appeal a lower court's decision to suppress evidence. The CPL authorizes only the Appellate Term and the Appellate Division to review decisions of lower courts to suppress evidence. Article 450 of the CPL outlines the process for appeals, including appeals from orders suppressing evidence, and specifies which courts have jurisdiction to review such orders. Article 450 of the CPL does not grant the Supreme Court appellate authority to overturn rulings of a lower court and cannot nullify a lower court's decision to suppress evidence. The lower court's suppression order stands and the People's motion for a de novo hearing is denied.

INSPECTION AND DISMISSAL OR REDUCTION

In this case, the sole count of the indictment charges the defendant with Driving While Intoxicated in violation of Vehicle and Traffic Law § 1192(3) as an unclassified misdemeanor. The defendant has moved for inspection of the grand jury minutes, dismissal or reduction of the indictment on the grounds that the evidence before the grand jury was not legally sufficient, or in the alternative, that the grand jury proceedings were defective within the meaning CPL § 210.35.

The defendant's motion to inspect the grand jury minutes is granted. The minutes reveal that a quorum of the grand jurors were present during the presentation of evidence and at the time the prosecutor instructed the grand jurors on the law. However, upon inspection of the grand jury minutes and exhibits, this court found the evidence before the grand jury to be legally insufficient.

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 a number of errors impaired the integrity of the proceeding resulting in prejudice to the defendant. (See CPL § 210.35[5].)

In the grand jury, Detective Steven Abrams testified that on June 10, 2023, at about 7:50 p.m., while responding to an automobile accident on the eastbound Grand Central Parkway, he came upon a vehicle that was parked on the eastbound shoulder of the Grand Central Parkway about a quarter mile before the parkway intersects with the Jackie Robinson Parkway. The vehicle, a black Honda Accord, was disabled and had been parked at an angle with the driver's side rear obstructed traffic travelling in the right lane. A man, the defendant, was standing to the shoulder, to the right of the Black Honda Accord. A second car was also parked on the shoulder behind the first vehicle. A woman was also standing on the roadway to the right of the second vehicle and a child was seated in the rear seat of the second vehicle. The black Honda Accord had significant scrapes to the front driver's quarter panel wheel well and the left front tire was missing from the rim. On seeing the damage to the black Honda Accord, Detective Abrams activated his lights and backed up his vehicle behind both vehicles parked on the shoulder of the roadway to create a safe area while he conducted his investigation.

Detective Abrams spoke first to the woman and asked if the defendant had been involved in an accident. She responded that the defendant had not been in an accident but had just sustained two flat tires. Detective Abrams then spoke to the defendant. The defendant said he was returning from Manhattan with his daughter, who was 12 years old, when he sustained a flat tire. He then called a friend, the woman and asked her to pick up his daughter since he was stranded. When Detective Abrams arrived at the scene, the defendant's friend was present.

The defendant then explained how he sustained a flat tire. He pointed to the curb to the right of the shoulder and said he hit the right side of the curb causing a flat tire. The defendant then said, while pointing to the left side of the roadway, he hit the left side. The defendant again changed his account, and said he hit the right side.

During his encounter with the defendant, Detective Abrams suspected the defendant was intoxicated. Detective Abrams smelled a strong odor of alcohol on the defendant's person and breath. He had blood shot watery eyes, and his face was severely flushed. The defendant told Detective Abrams he had one drink of Hennessy. Detective Abrams then administered a field sobriety test on the defendant, the horizontal gaze nystagmus test, and concluded, based on his observations and the results of the field sobriety test, that the defendant was intoxicated. Detective Abrams then arrested the defendant.

The prosecutor also submitted in evidence as exhibit 1, a photograph of the defendant's vehicle that depicted the damage to the left front of the black Honda Accord and the left front wheel rim. According to Detective Abrams, the photograph was taken at about 8:30 p.m. after other NYPD units responded to the scene to assist him and the front wheels of the defendant's car were cradled in the tow truck's wheel lift arms.

A redacted version of Detective Abram's body worn camera footage of his encounter with the defendant was received in evidence as exhibit 2.³ The footage from Detective Abrams' body worn camera was 23 minutes and 28 seconds long. During the encounter, the defendant offered several versions of how he sustained two flat tires. The defendant said he caught two flats because he "was a little distracted on my phone. So I hit the side of the road. Nah, I think right here I caught two flats. I was just waiting for a tow truck.

Detective Abrams then asked if he hit anything. The defendant said he didn't hit anything but "I ended up just hitting---just like my tires are kinda bald so I ended up the curb. I got two flats."

Detective Abrams asked whether the defendant hit a guardrail. The defendant, motioning to the side of the road, said "Here."

Detective Abrams again asked if hit anything. The defendant said "The curb. My tires are a little bald. So I caught two flats and I pulled over and called a tow truck."

Abrams then asked the defendant "What exactly did you hit?" The defendant said, "The curb", while motioning to the side of the roadway. Detective Abrams then said, "There's no curb here." The defendant explained "It was further back that way", motioning down the Grand Central Highway.

Detective Abrams then asked whether he hit the right side of his vehicle. The defendant said it was the left side of his car, while motioning to the left side of his car. Detective Abrams again asked what side of the car you hit the curb with. The defendant said, "That happened about a month ago." Detective Abrams then asked how he the left side of the defendant's car hit the right curb. The defendant again said "That was a month ago. This was a month ago." Detective Abrams then asked the defendant what side of the highway he hit. The defendant said, "It had to be this side", while motioning to the left side of the highway. "I didn't hit over there" while motioning to the left side of the highway.

On this evidence, the prosecutor asked the grand jury on September 23, 2024, to consider two charges: Aggravated Driving While Intoxicated (VTL § 1192[2a-b]the ) and Driving While Intoxicated (VTL § 1192[3]). The instructions for both counts as a matter of law were proper.

The grand jury returned a true bill only as to Aggravated Driving While Intoxicated (VTL § 1192(2a-b) but the prosecutors did not file an indictment. Instead, the prosecutors returned to the same grand jury on September 26, 2024, and reopened the case. Mr. Hanophy, the prosecutor, explained:

"Good afternoon[,] Ladies and Gentlemen. My name is Assistant District Attorney Robert Hanopy, also present with me is Assistant District Attorney Mary Michalos whom I think you met on a previous occasion. At this time we are reopening the case of the People of the State of New York against Jaime Delgado. The Grand Jury number is 1848 of 2024. Mr. Foreperson, do we have a quorum present?"

Foreperson: Yes

"Do we have 12 or more jurors present today who were present and who heard all of the evidence in this case on September 23rd and September 26th of 2024?"

Foreperson: Yes.

"On September 26th, the Grand Jury returned a true bill on a charge of VTL Vehicle Traffic Law 1192.2 A-B. which is the Aggravated Driving While Intoxicated with a Child Less than 15 years of age in the car.

During the vote on that charge, the second count that you considered, driving while intoxicated, you did not find a true bill.

Under the law, and as your legal advisor, that is what's known as [a] repugnant verdict. In that the element of driving while intoxicated charge [is] present in second charge in [the] second charge, those same elements are present in the [the] first count with the addition of the —- or with the addition the child being less than 15 years old present in the car [ ] while the defendant allegedly operated the motor vehicle.

What we have here is a problem. So, there are several things that we can do to cure the problem. That's why Assistant District Attorney Michalos and I are back before you. So, as I stated a moment ago, where the elements of the second charge which is driving while intoxicated exists and we can give you a redefinition of the terms, if the grand jury would like to hear the element of the offense again. And again, the first could — that you considered is the decisional count we have to fix the problem there.

So, the Grand Jury [has] the option of reconsidering, vacating your prior vote and either finding no true bill as to both counts, a true bill as to both counts, a true bill as to the second count and not the first count, but not the second count.

So, at this point I'm going to —we're going to step out. I'm going to ask the foreperson to speak to the Grand Jury and amongst yourselves. Take a vote as to whether the explanation is sufficient, if everybody does understand.

If everybody does understand, you can decide whether you want a redefinition of [the] charges or whether you want to revote. I should ask for your vote as to whether you want to hear a redefinition of charges or whether you want to revote. I should ask for your vote as to whether you want to hear a redefinition of the charges. And before you do that, to make sure that each and members of the grand jury that will be voting have a sufficient recollection of the facts of the case."

Foreperson: I have a question.

Mr. Hanopy: Question from the foreperson.

Foreperson: Are you leaving us the evidence and the paper of that definitions?

Mr. Hanophy: I cannot leave you a copy of the charges. I can re-read them to you. With regards to evidence, believe there is a photo, Grand Jury exhibit ---Grand Jury Exhibit Number 1 is a photo that Grand Jury can consider that. If the Grand Jury would like the body worn camera footage, which is Grand Jury Exhibit Number 2[,] we can play that back for you.

Foreperson: Um.

Mr. Hanopy: And I know this is a lot to take in.

Foreperson: I think ---give me a minute.

Mr. Hanophy: The Grand Jury can talk amongst yourself. With whatever you ask me to do, you must make sure it's at least 12 or more Grand Jurors. We will step out.

Reporter: Thereupon the ADAs and the court reporter left and subsequently returned.

Thereafter, the foreperson informed the prosecutor that the grand jury had voted to have both charges re-read to them. Once again, both counts, Aggravated Driving While Intoxicated (VTL § 1192 [2a-b]), and Driving While Intoxicated (VTL § 1192 [3]), were properly submitted as a matter of law for the grand jury's consideration. This time, the grand jury returned a true bill as to only Driving While Intoxicated.

The first issue the court is concerned with is whether the prosecutor was required to seek leave from the court pursuant to CPL § 190.75 (3) before resubmitting a dismissed count—riving While Intoxicated (VTL § 1192[3])—to the grand jury.

Under CPL § 190.75(3)if a grand jury votes to dismiss a charge against a defendant, the prosecutor may not re-present that charge to the same or another grand jury without first obtaining permission from the court. (see CPL § 190.75[3]) In People v Dykes, 86 AD2d 191, 195 (2d Dept 1982) the grand jury had voted a no true bill on assault charges after the defendant had testified that another person had stabbed the victim. The prosecutor sought permission to resubmit solely on a "belief" that the decision was against the weight of the evidence, an application that was later granted and the defendant was indicted by a second grand jury. The Court explained:

[A] determination by the Grand Jury that the evidence before it does not warrant an indictment should end the matter and there should not be a resubmission unless it appears, for example, that new evidence has been discovered since the former submission, that the Grand Jury has failed to give the case a complete and impartial investigation, or that there is a basis for believing that the Grand Jury otherwise acted in an irregular manner.

Id. at 195. The Court also stated that any application by the People to re-present to another grand jury must "be accompanied by facts sufficient to permit a proper exercise of discretion by the reviewing judge" (Id. at 196)

Here, after the grand jury fully considered the evidence and the charges, returned a no true bill as to Driving While Intoxicated and a true bill as to Aggravated Driving While Intoxicated. Although the prosecutor, as agent of the grand jury, did not file the dismissal of the charge with the court as required by CPL § 190.75(1), or file the indictment as required by CPL § 190.65(3), the vote of the grand jury to dismiss the charge of Driving While Intoxicated and indict on the count of Aggravated Driving While Intoxicated nevertheless constituted official acts of the grand jury pursuant to CPL § 190.25(1). Here, as a review of the grand jury minutes demonstrates, the grand jury's reconsideration of the charges was prompted by the prosecutor. Even if the prosecutor believed that the grand jury's dismissal of Driving While Intoxicated was inconsistent with, or repugnant to the remaining count, he may not request that the grand jury vacate its vote as to both counts and then resubmit both counts without court authorization pursuant to CPL § 190.75(3). (see, People v Dykes 86 AD2d 191 [2d Dept 1982]). The prosecutor's failure to seek authorization from the court to resubmit both counts was a jurisdictional defect and requires dismissal of the indictment. (see CPL§§ 210.35[5]; 210.20[1][c]; People v McCoy, 109 AD3d 708, 710 [1st Dept 2013]).

The prosecutor prompted the grand jury to reconsider its votes on each count was based on his conclusion that the findings of the grand jury were legally defective and inconsistent with the rules set forth in CPL § 310.50. Under that section, when a trial jury returns a legally defective verdict, "the court must explain the defect or error and must direct the jury to reconsider such verdict, to resume its deliberations for such purpose, and to render a proper verdict" (CPL § 310.50[2]). While the District Attorney shares with the court the responsibility of being the legal advisor to the grand jury (see CPL § 190.25[6]), once a charge has been presented for consideration and rejected by a grand jury, it may not again be submitted to any grand jury "unless the court in its discretion authorizes or directs the [P]eople to resubmit such charge to the same or another grand jury" (CPL § 190.75[3]) The purpose of this statutory limitation was "to prevent abuses by prosecutors who, at common law, were free to resubmit matters to the Grand Jury repeatedly and without any court supervision" Dykes, supra at 194. Thus, even if the prosecutor correctly concludes that a dismissal of a charge by a grand jury is inconsistent with, or repugnant to, its finding on the remaining count, it is for the court and not the District Attorney, to decide whether a repugnancy exists, and, if so, whether the repugnancy rules that apply to petit juries is applicable to grand juries. Accordingly, the indictment obtained on September 26, 2024, must be dismissed and the People have leave to re-present both counts to a new grand jury.

Because this case must be re-presented, the People are reminded that a prosecutor cannot use evidence in a subsequent grand jury presentment that a court previously ruled was obtained illegally. Here, the People introduced a photograph of the defendant's vehicle, exhibit 1. The photograph was taken at about 8:30 p.m. about 50 minutes after Detective Abrams saw the defendant and his vehicle parked on the shoulder of the eastbound lanes of the Grand Central Parkway obstructing traffic. Detective Abrams also testified that after conducting his DWI investigation, he placed the defendant in handcuffs and placed his in the rear of my unmarked police car seat belted in." (GJ tr at 17) The hearing court's suppression order precluded the use of any evidence obtained after the defendant was placed under arrest. The hearing court, however, made no finding as to when the defendant was placed under arrest, but simply said. "All the fruits flowing from that arrest — including the police's subsequent observations and the alleged refusal to take a chemical test — must be suppressed. Delgado, Id. at 6 The police report in the court file placed the time of arrest at 9:01 p.m. at the 112th Precinct. In any event, the use of exhibit 1 did not otherwise impair the integrity of the grand jury proceedings since other evidence legally obtained satisfied the requirements of legally sufficient evidence and reasonable cause to believe.

In light of this determination, the court need not address the defendant's remaining claims.

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.

April 23, 2025

GARY F. MIRET, A.J.S.C.

FOOTNOTES

1.   The defendant's omnibus motion incorrectly referenced the indictment number as Indictment No. 74362-23QN.

2.   In computing the period in which the People must be ready for trial, the day on which the criminal action is commenced is excluded from the calculation. (see People v Stiles, 70 NY2d 765 [1987]; People v Cortes, 80 NY2d 201, 208 [1992];People v Harrison, 171 AD3d 1481, 1482 [4th Dept 2019]; General Construction Law § 20.

3.   The audio on exhibit 2 was muted at 11:31 to 11:51, 12:20 to 12:31, 15:47 to 15:55, 16:23 to 16:38, 16:47 to 16:52 and 17:27 to 17:33. In addition, the video image was blacked out and the audio was muted from 14:14 to 14:47.

Gary F. Miret, J.