The People of the State of New York v. Abdul Haruna, Defendant (2025)

The defendant, Abdul Haruna, has submitted an omnibus motion, dated February 28, 2025, seeking: inspection of the Grand Jury minutes and dismissal or reduction of the indictment; Brady/Rosario material; preclusion of evidence; suppression of evidence; severance; an order to invalidate the People's certificate of compliance; an order dismissing the indictment pursuant to CPL § 30.30; Sandoval relief; and leave to file further motions. 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.

INSPECTION AND DISMISSAL OR REDUCTION

Defendant's motion to inspect the grand jury minutes is granted. The minutes reveal that a quorum of the grand jurors was present during the presentation of evidence and at the time the prosecutor instructed the grand jurors on the law. The indictment substantially conforms to the requirements set forth in CPL § 200.50. The instructions were not defective as a matter of law and the proceedings were proper. Upon inspection of the grand jury minutes and exhibits, this court found the evidence to be legally sufficient to support all the counts of the indictment. Accordingly, the defendant's motion to dismiss or reduce the indictment is denied.

The defendant also contends the prosecutor impaired the integrity of the grand jury proceedings through the cumulative impact of evidence of "overt acts of [the] codefendants that enveloped the interface of [the defendant]". (affirmation of defendant's attorney at 7) The court disagrees and finds any errors in the grand jury presentation did not impair the integrity of the proceedings.

MOTION TO COMPEL BRADY/ROSARIO MATERIAL

As to the defendant's demand for Brady/Rosario material, the People are reminded of their continuing duty to provide evidence or information that is favorable to the defendant and is referred to the court's Brady order, which appears below.

PRECLUSION OF EVIDENCE

The defendant's motion to preclude any unnoticed statements or identification evidence pursuant to CPL§§ 60.45, 710.20(3) and 710.43(3) is denied. The determination of whether such evidence has been properly noticed is referred to the discretion of the hearing and trial courts before which any such evidence comes to light.

MOTION TO SUPPRESS

The defendant motion to suppress identification evidence is granted to the extent that a Wade hearing is ordered.

SEVERANCE

This case involves three defendants (hereinafter Ahmed, Murtala Haruna and Abdul Haruna) who are charged in a 575 count superseding indictment. The indictment alleges that from and between March 27, 2023 and September 8, 2023, the defendants conspired to illegally possess and sell firearms, large capacity ammunition feeding devices and ammunition that were transported from Ohio to Queens County. All three defendant are jointly charged as acting in concert in three counts; the conspiracy (count 1), the sale of three or more firearms in less than one year (count 2), and the crime of money laundering (count 3). In the indictment, Ahmed is charged acting alone in 115 counts related to the sale of 19 firearms and related devices on June 27, 2023. Ahmed is jointly charged with Abdul Haruna in 206 counts related to the possession and sale of 12 firearms and related devices on June 10, 2023, and to the possession and sale of 30 firearms and related devices on August 14, 2023. Ahmed is also jointly charged with Murtala Haruna in 251 counts related the possession and sale of firearms and related devices on August 26, 2023 and September 8, 2023. The evidence before the grand jury against each of them was both substantial and fairly straightforward, involving the operation of a gun trafficking operation. Although some of the evidence concerned crimes in which not all of the defendants were directly involved, that evidence was admissible against all of them as alleged coconspirators, since the conduct in question involved overt acts in furtherance of the conspiracy.¹

The defendant has moved for severance, alleging "there is substantially more proof as to [Ahmed] and there is a substantial likelihood that the jury would be unable to separately consider the proof as it relates to each offense." In addition, the defendant asserts that Bruton  ² concerns are implicated by the People's intention to offer statements made by either Ahmed or Murtala or both that he will not be able to confront. Moreover, his defense at trial will be in irreconcilable conflict with the co-defendants' and he will suffer substantial prejudice if tried alongside co-defendants with purportedly greater culpability. (affirmation of defendant's attorney at 9) The People oppose the motion, arguing that the defendant has not demonstrated that anticipated differences in the co-defendants' defenses are antagonistic and mutually exclusive to the point they are in an irreconcilable conflict. The People also assert that the Bruton rule does not preclude the admission of statements that are co-conspirator statements made in furtherance of the conspiracy. (affirmation of prosecutor at 4-6)

In this case, the charges against the defendants are properly joined because they are based upon the same criminal transaction. (CPL §§ 200.40[1][c]; 40.10[2].) As the Court of Appeals noted in People v Mahboubian, 74 NY2d 174, 183 (1989), the decision to grant separate trials rests in the sound discretion of the trial court. But, the Court observed, "[s]everance is compelled where the core of each defense is in irreconcilable conflict with the other and where there is a significant danger, as both defenses are portrayed to the trial court, that the conflict alone would lead the jury to infer defendant's guilt." (Id. at 184.) Nonetheless, where the proof against the defendants is "supplied by the same evidence, only the most cogent reasons would warrant a severance." (People v Caldwell, 150 AD3d 1021, 1022 [2d Dept 2017].) Indeed, "strong public policy favors joinder, because it expedites the judicial process, reduces court congestion, and avoids the necessity of recalling witnesses." (People v Lessane, 142 AD3d 562, 563 [2d Dept 2016][quoting Mahboubian, 74 NY2d at 183].) Of course, that expediency does not outweigh the defendant's right to a fair trial, free of undue prejudice. (Id.)

While there is no question that Ahmed played a central role in the conspiracy, the same evidence will supply proof against him and each of the other defendants at trial, so only the most cogent reasons would necessitate severance. While there are different levels of culpability and proof among defendants in a multiple defendant case, those issues alone are insufficient grounds for separate trial. (see People v Odusanya, 235 AD3d 1299 [4th Dept 2025] [Although the proof against one defendant was not quite as strong against codefendant, " '[t]hat the evidence against one of two or more jointly tried defendants may be stronger than the evidence against another hardly is unusual and does not afford the latter with an adequate ground' " to demonstrate that the court abused its discretion in consolidating the indictments for trial. [quoting People v Moore, 223 AD3d 1085, 1093-1094]; United States v Chang An-Lo, 851 F.2d 547, 557 [2d Cir. 1988]). Moreover, in a conspiracy case, no defendant is a minor player, especially when the underlying crime involves a common plan or scheme. Further, Bruton does not preclude the admission of statements that are co-conspirator statements in furtherance of the conspiracy. (see People v Rastelli, 37 NY2d 240, 244 [1975] ["it has long been the law in New York that the acts and declarations of one coconspirator which occur while the conspiracy is in progress and which are in furtherance of the common scheme are admissible and provable as to all other coconspirators as part of the res gestae and recognized exception to the hearsay rule."]).

The defendant and Ahmed are charged as acting in concert in this case. Thus, the People intend to prove that they acted with the same intent. The fact that the defendant is alleged to have played a lesser role in this conspiracy and related substantive counts than Ahmed is not of legal moment under an acting-in-concert theory. Any argument that the defendant was less culpable because he was not the actual seller of firearms would be entirely spurious in an acting-in-concert case, since the law dictates that he is equally culpable if he shared the same mental state, regardless of who sold the firearms and related devices and ammunition.

Thus, the defendant has failed to demonstrate at this time that he and the codefendants' defenses are so antagonistic to him that trying them together would result in undue prejudice or deprive him of a fair trial. (People v Watkins, 10 AD3d 665 [2d Dept 2004][Severance is not required solely because of hostilities among the defendants, differences in their trial strategies, or inconsistencies in their defense, and is compelled only where the core of each defense is in irreconcilable conflict with the other and where there is a significant danger that the conflict alone would lead the jury to infer a defendant's guilt.]). A jury could reasonably credit defendant's defense that that he did not share the same intent as Ahmed but was merely an innocent dupe. His motion for severance is, therefore, denied.

CERTIFICATE OF COMPLIANCE CHALLENGE

In this case, the People filed their certificate of compliance on January 16, 2024, and supplemental certificates of compliance on March 8, 2024, and May 23, 2024. On February 28, 2025, the defendant filed his omnibus motion that seeks an order invalidating the People's certificate of compliance, arguing the People failed to provide certain discoverable materials, and dismissal of the indictment pursuant to CPL § 30.30. The People filed their response on April 1, 2025, and oppose the defendant's motion in its entirety.

The defendant challenges the People's original certificate of compliance, arguing they failed to provide the following discoverable material: (1) recordings calls of conversations spoken in the languages/dialects of Hausa/Twi/Ga; (2) all information related to the confidential informant that lead to co-defendant Ahmed; (3) all materials related to interactions between defendant and co-defendant Ahmed; (4) all call details related to the defendant; (5) all phone records related to the defendant's phone received by the People through subpoena; (6) all of defendant's bank records received by the People through subpoena; and (7) name of the device used on the trap and trace/pen register.

The defendant was arraigned on this case on November 9, 2023. He was represented by Michael Paul, Esq. Mr. Paul was relieved and replaced by Stacy Richman, Esq. on October 21, 2024, defendant's current counsel. The People explained that during the interim, they had served on defendant's former counsel and filed with the court their certificate of compliance on January 16, 2024, and two supplement certificates of compliance respectively on March 8, 2024, and May 23, 2024. The People affirmed that the discovery provided to defendant's former counsel included all of defendant's bank and phone records they had received by subpoena, recordings of calls that were spoken in the Hausa/Twi/Ga dialects, all call details related to the defendant, and all materials related to the interactions between the defendant and co-defendant Ahmed.

Altogether, the People's discovery amounted to over 600 gigabits of data that consisted of over 900 folders and 340,000 files of discovery.

Defendant's current counsel requested as a courtesy a hard drive with all discovery that was previously provided to defendant's former counsel. (affirmation of defendant's attorney at 10) On January 7, 2025, the prosecutor received an email from defendant's counsel that indicated the items set forth above were missing from the hard drive provided. The prosecutor concedes that she inadvertently "forgot to provide [defendant's counsel] with the underlying phone calls and trap and trace information, consisting of 18.6 gigabits of data that contained 10 folders and 10 files." (affirmation of prosecutor at 8) Upon learning of the inadvertent omission, the prosecutor overnighted the missing data to defendant's counsel. The prosecutor further affirmed that all of the defendant's bank and phone records she had subpoenaed were provided to both defendant's former and current counsels, as were discovery related to the call details related to the defendant and discovery related to the defendant's interactions with co-defendant Ahmed.

In accordance with an order issued by this court pursuant to CPL § 245.70, information tending to identify the confidential witness was not disclosed. Accordingly, the defendant is not entitled to discovery that is subject to the protective order.

Lastly, the defendant has demanded the name of the device used as the trap and trace/pen register, contending that "if the device had the capacity to record the resultant productions would be invalid." (affirmation of defendant's attorney at 10) What appears to be the defendant's primary concern is not the name of the device/program used in the trap and trace/pen register, but whether device was improperly used to record the substance of the calls that were trapped and traced. The relevant question not asked directly by the defendant was whether the People improperly recorded the substance of any calls that were otherwise properly authorized to be captured by the trap and trace/pen register. It does not strike this court that the name of the device/program is otherwise related to the subject matter of this case, the offenses charged, or any potential defense. Nevertheless, the People explained in their response they previously disclosed that information, but have since learned that since 2023, the NYPD has used Cognyte. (affirmation of prosecutor at 9)

Of this prodigious discovery produced to the defendant, one item, Cognyte, assuming that it is related to the subject matter of this case, forms the basis of the defendant's motion to invalidate the People's certificate of compliance and two supplemental certificates of compliance.

In People v Bay, 41 NY3d 200 (2023), the Court of Appeals stated " the key question in determining if a proper COC has been filed is whether the prosecution has 'exercis[ed] due diligence and ma[de] reasonable inquiries to ascertain the existence of material and information subject to discovery.' " Id., at 211. The Court noted that in assessing due diligence, "[a]nalysis of whether the People made reasonable efforts to satisfy CPL article 245 is fundamentally case specific, as with any question of reasonableness, and will turn on the circumstances presented." Id. at 212. Although the factors relevant for assessing due diligence may vary from case to case, courts should "generally consider, among other things, 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 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." Id. at 212.

After assessing the volume of discovery provided, the complexity a 575 count indictment, the efforts made by the prosecutor and her office to comply with their discovery obligations, and the prompt disclosure of the underlying phone records related to the defendant and the trap and trace/pen register device information, the court finds, under these circumstances the People exercised due diligence and their certificate of compliance was made in good faith and proper. Accordingly, the defendant's motion to invalidate the People's certificate of compliance on this basis is denied.

DISMISSAL PURSUANT TO CPL § 30.30

Relatedly, because the defendant's CPL § 30.30 motion relies on the premise that certain periods are chargeable to the People because their certificate of compliance was improper, the court also denies that motion.

SANDOVAL RELIEF

The defendant's request for a Sandoval hearing and, ultimately, the preclusion of evidence of prior bad acts is referred to the trial court. The People are reminded that the disclosure of Sandoval evidence that they intend to introduce at trial shall be made in accordance with the time frame set forth in CPL § 245.10(1)(b) and 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.

May 6, 2025

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

FOOTNOTES

1.   For example, overt act 10 alleges that on June 10, 2023, Ahmed and the defendant sold 12 firearms, including an assault weapon, and 22 large capacity magazines in exchange for $13,200. Overt act 17 alleges that on June 27, 2023, Ahmed sold 19 firearms, including 4 assault weapons, and 28 large capacity magazines for $26,700. Overt act 20 alleges that on August 8, 2023, the defendant received $4,000 from an undercover police officer to finance the purchase of firearms and related devices that Ahmed and an unknown women sold on August 14, 2023. Overt act 25 alleges on August 14, 2023, Ahmed and an unknown women sold 30 firearms including 7 assault weapons, and 32 large capacity magazines in exchange for $39,000. Overt act 35 alleges that on August 26, 2023, Ahmed and Murtala sold 35 firearms, including 5 assault weapons, and 44 large capacity magazines for $46,000. And overt act 41 alleges that Ahmed and Murtala Haruna possessed 10 firearms, including 3 assault weapons, and 13 large capacity magazines and 1,000 rounds of ammunition.

2.   391 U.S. 123 (1968)

Gary F. Miret, J.