The defendant, Randol Contreras, has submitted an omnibus motion, dated December 18, 2024, seeking: inspection of the Grand Jury minutes and dismissal or reduction of the [*2]indictment; suppression of evidence; pre-trial voluntariness hearings; an order invalidating both the People's certificate of compliance and statement of readiness; release of defendant pursuant to CPL 30.30 (2)(a); preclusion of evidence; an order for a bill of particulars; Sandoval relief; and leave to file further motions. The People's response, dated January 15, 2025, consents to some of the relief sought and opposes other relief. The court decides the motion as follows.

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 counts of the indictment. Accordingly, the defendant's motion to dismiss or reduce the indictment is denied.

The defendant's motion to release the grand jury minutes is partially moot and otherwise denied. In their Certificate of Compliance filed October 18, 2024, the People certified that they had turned over the grand jury testimony to the defense in accordance with the requirements of CPL § 245.20(1)(b). Thus, the defendant has received the portion of grand jury transcript to which he is entitled pursuant to CPL § 245.20(1)(b) and his motion is moot with respect to that portion of the minutes. Otherwise, the defendant's motion is denied because release of the remainder of the grand jury minutes is not necessary to assist this court in determining defendant's motion to reduce or dismiss the indictment.

The defendant seeks to suppress physical evidence that was recovered from his person. The defendant describes those items as clothing consisting of a black tank top, a pair of red shorts and other personal items. The defendant's motion to suppress physical evidence is granted to the extent that a Mapp hearing is ordered. The scope of the hearing is limited to property recovered from the defendant's person, namely clothing consisting of a black tank top, and red short and other personal items, described by the defendant as shoelaces, a cell phone, cigarettes and body lotion. The People indicated in their certificate of compliance that they would seek to introduce items vouchered under voucher 4001130800 on their case in chief, but failed to address in their response these items recovered from the defendant's person. If the People affirm to the hearing court, they intend to introduce all or some of these items on their case in chief, the defendant's motion to suppress such items is granted to the extent that a Mapp hearing is ordered. The hearing will determine, among other things, the location from where the blue amazon vest was recovered. The defendant asserts the amazon vest was recovered from his person and the People assert it was recovered from the trash receptacle. If the vest was recovered from the defendant's person, then the scope of the hearing will include the vest. If, on the other hand, the vest was recovered from the trash receptacle, then, for the reasons discussed below, the defendant has failed to establish standing to complain and the claim must be denied without reaching the merits.

The defendant also seeks to suppress items that the police recovered from the trash receptacle and derivatively any DNA retrieved from those items. In support of his application to suppress these items, he argues he did not abandon the pocket knife when he threw it into the trash receptacle. The People, in their response papers, assert the defendant abandoned both the pocket knife and blue amazon vest when he disposed of these items in a trash receptacle as he [*3]fled the scene of the crime.

Standing relates to the question of whether the defendant has the right to challenge the way the police obtained the information or evidence that is sought to be used against him. Standing is a threshold issue. If a defendant does not have standing to make a claim, the inquiry ends there and the claim must be denied on that basis without reaching the merits.

In People v Wesley, 573 NY2d 351, 357 (1989) the majority held that since People v Ponder, 54 NY2d 160, (1981) "a defendant seeking to challenge a search and seizure could not rest upon the fact that the People have charged possession, but was required to demonstrate a personal legitimate expectation of privacy in the searched premises."

Nowhere in the affirmation did the defendant assert a privacy interest, much less a legitimate one, in the trash receptacle in which the pocket knife was found.

This court finds the defendant did not sustain his burden of showing that he had a reasonable expectation of privacy in the trash receptacle and therefore he lacks standing to challenge the validity of the search and seizure of the pocket knife, the blue amazon vest and any DNA derived therefrom. (see People v Cherena, 177 AD2d 638, [2d Dept 1991]; People v Ramirez-Portoreal, 88 NY2d 99, 108 [1986][defendant seeking suppression of evidence has the burden of establishing standing by demonstrating a legitimate expectation of privacy in the premises or object searched"]; People v Rodriguez, 69 NY2d 159, 161 [1987]; People v Rice, 204 AD3d 834 [2nd Dept 2022].) Accordingly, defendant's motion for a Mapp hearing as to these items is denied.

The defendant's motion to suppress statement evidence is granted to the extent that a Huntley hearing is ordered. At that hearing, the court is to determine whether the defendant's statements were made in violation of his Miranda rights and whether the statements were made involuntarily within the meaning of CPL § 60.45.

The defendant's motion to suppress identification evidence is denied. In this case, the People allege two civilians, Josnan Palacio and Alexander Robles, witnessed the defendant stabbing the complainant with a knife at the Jamaica-Van Wyck subway station. When the defendant fled the scene, these two eyewitnesses pursued and apprehended the defendant immediately after the commission of the crime while the defendant was still in subway station. When police officers arrived, these two eyewitnesses identified the defendant to the police officers as the complainant's assailant. The identification of the defendant was not a police-arranged confrontation that requires a hearing to resolve any fact issues as to suggestiveness. (see People v Dixon, 85 NY2d 218; People v Samuels, 162 AD2d 559 [2nd Dept 1990]; People v Burgos, 219 AD2d 504, [1st Dept 1995]; People v Harris, 288 AD2d 20 [1st Dept 2001]; People v Stubbs, 305 AD2d 1096 [4th Dept 2003]).

The defendant has also moved for suppression of evidence or a Dunaway hearing, on the basis that the evidence recovered was the fruit of an illegal seizure. The factual allegations in the defendant's motion is insufficient to give rise to a Dunaway hearing. The People allege in the indictment that on July 28, 2024, the defendant engaged in criminal conduct by stabbing the complainant with a knife while attempting to rob her.

The factual allegations in the defendant's motion are insufficient to give rise to a Dunaway hearing. In support of his Dunaway application for the suppression of physical property seized from him and statement evidence were unsupported by probable cause, the defendant fails to support his application with any facts, but simply argues "When the police seized the defendant, the defendant was inside a subway station. Defendant had engaged in no [*4]observable unlawful behavior at that time and in the period preceding the seizure. Nothing illegal or suspicious was in open view. Defendant denies that any civilians provided the police with reliable information establishing a lawful basis for seizing him. The police then approached the defendant, seized him, and arrested him. Because the officers lacked the requisite level of suspicion, the police actions were unlawful."(affirmation of defendant's attorney at ¶ 16)

To obtain a Dunaway hearing, a defendant must allege a sufficient factual basis to demonstrate that there is some material factual dispute that requires resolution by such a hearing. (See People v Mendoza, 82 NY2d 415, 426 [1993].) In this regard, the Court of Appeals has explicitly stated, "An allegation that 'I did nothing giving rise to probable cause' is, without more, plainly insufficient because probable cause is a mixed legal-factual issue and the pleading lacks the factual portion of the equation." (Id. at 427.)

Here, the purportedly factual portion of the defendant's motion on this point is nearly identical to the allegation the Court of Appeals deemed "plainly insufficient" in Mendoza. Unsurprisingly, then, this allegation is insufficient to give rise to a Dunaway hearing and the defendant's motion is denied in that regard.

The defendant's request for the People to produce at the hearing the property seized from the defendant is denied. (cf. People v Robinson, 118 AD2d 516 [1st Dept 1986].)

The defendant's motion for a pretrial hearing to determine the voluntariness of any unnoticed statements he may have made to police officers or 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 a hearing at that time.

In this case, the People filed their certificate of compliance on October 18, 2024. On December 18, 2024, the defendant filed his omnibus motion that seeks an order invalidating the People's certificate of compliance on two related grounds. The People filed their response on January 15, 2025, and oppose the defendant's motion in its entirety.

First, the defendant asserts the People did not provide 44 DD5 files prior to filing their certificate of compliance. Second, the defendant asserts the People's statement of readiness was invalid because the caption of the statement of readiness referred to a different defendant and indictment number.

Defense counsel states in her papers that the People had served her with discovery prior to filing their certificate of compliance. Sometime thereafter she reviewed those discovery files and realized that an investigative file, DD5#19, suggested the existence of other investigative files prepared by detectives, commonly referred to as DD5 files, which had not been provided by the People. On December 17, 2024, defense counsel emailed the prosecutor requesting the missing DD5 files (affirmation of defendant's attorney at 14) The prosecutor on December 18, 2024, emailed defense counsel an additional 44 DD5 files.

The prosecutor explained that these 44 investigative files had been included with the tranche of discovery previously provided. When notified by defense counsel of the missing investigative files, the prosecutor learned that due to a technical problem with the computer system, the missing 44 DD5 files were not linked to the related DD5 files that defense counsel had received. Then, on December 18, 2024, the prosecutor electronically shared the missing investigative files with defense counsel and emailed her to confirm receipt of the files and to advise her of the technical problem that caused the delay in receiving the files in question.

It is clear the prosecutor was unaware these 44 files had not been shared with defense counsel as intended. Upon being notified by defense counsel that files appeared to be missing, the prosecutor promptly investigated and learned that the files had not been linked properly to the related DD5 file. The prosecutor then shared the missing files with the defense counsel the next day. Under these circumstances, the court finds the People acted with due diligence and in good faith and the missing files did not affect the validity of the People's certificate of compliance. (see People v Bay, 41 NY3d 200 [2023], People v Macaluso, 230 AD3d 1158 [2d Dept 2024]). Accordingly, the defendant's motion to invalidate the People's certificate of compliance on this ground is denied.

Defendant also moves to invalidate the People's statement of readiness on the ground that it referred to a different defendant and listed the wrong indictment number. The defendant argues "Since the COR does not refer to the instant indictment . . . it is invalid and did not stop the speedy trial clock.", and contends that the People must be charged with 108 days that have elapsed from the date of his arraignment through November 14, 2024, when the People announced their readiness in open court. (affirmation of defendant's attorney at ¶¶ 33-34) In support of his argument, the defendant submitted with his papers exhibit A which consists of the People's certificate of compliance, a list of the shared files and the People's statement of readiness. A review of exhibit A shows that the People's certificate of compliance correctly lists the defendant's name and indictment number. The list of shared files also shows for every file shared the defendant's name and correct indictment number. But the statement of readiness misnames the defendant and lists the wrong indictment number.

In addition to defendant's exhibit A, the court file contained the People's written statement of readiness dated October 18, 2024, along with the People's certificate of compliance and list of shared discovery files. The EDDS receipt found in the court file reflects that the People filed with the court on October 18, 2024, a written statement of readiness, a certificate of compliance and a list of shared files.^[FN1] The receipt also indicated both the defendant's correct name and indictment number. A review of the People's filings reflects the same errors on the written statement of readiness that were found on the defendant's copy of the People's statement of readiness on which the People misnamed the defendant. The People's certificate of compliance named the defendant and recorded the indictment number correctly. And the list of shared files also reflects for each file, the defendant's name and correct indictment number.

The People explain in their response papers that the certificate of readiness the People filed "was a clerical error". Despite misnaming the defendant and listing the wrong indictment number on the statement of readiness, the People argue that the shared discovery and certificate of compliance make it clear that the statement of readiness referred to the defendant. In support of their argument, the People point out "[t]he certificate of readiness was attached in the same PDF as the People's Certificate of Compliance . . . ", and the name of the defendant's attorney appeared on the statement of readiness. (affirmation of prosecutor at 7)

The court finds the correct party, the defendant, was served, but under a misnomer, with the People's statement of readiness. In this instance, the prosecutor simply misnamed the defendant in the People's statement of readiness. Notwithstanding the misnaming of the defendant, and incorrect indictment number, the defendant was fairly apprised that the People were ready for trial.

The People are ready for trial when they serve "either a statement of readiness by the prosecutor in open court, transcribed by a stenographer, or recorded by the clerk or a written notice of readiness sent by the prosecutor to both defense counsel and the appropriate court clerk." (People v Chavis, 91 NY2d 500, 505 [1998]). The People must in fact be ready to proceed at the time they declare readiness." (id.) The People's declaration of readiness is "presumed truthful and accurate" and "a defendant who challenges such a statement must demonstrate that it is illusory", People v Brown, 28 NY3d 392, 405 [2016]). In this case, the court finds the defendant has failed to demonstrate that the People's statement of readiness was illusory. Accordingly, the defendant's motion to invalidate the Peoples statement of readiness is denied.

The defendant seeks his release, pursuant to CPL § 30.30(2)(a), on the ground that he has been in custody for more than 90 days of includable delay. The People oppose the defendant's motion.

Under CPL § 30.30(2)(a), a defendant must be released on bail or on his own recognizance if the People are not ready for trial within 90 days of the commencement of his confinement where he is accused of a felony.

On July 29, 2024 the defendant was arraigned on a felony complaint and bail was set; defendant remained incarcerated and the case was adjourned to August 2, 2024 for grand jury action. This 5 day adjournment is charged to the People.

On August 2, 2024, the People filed with the court a notice of a voted indictment. The court adjourned the case to August 21, 2024, for the defendant to be arraigned on the indictment. This 19 day adjournment is charged to the People.

On August 21, 2024, the defendant was arraigned and the court adjourned the case to September 30, 2024, for the People to file their certificate of compliance and statement of readiness. This 40 day adjournment is charged to the People.

On September 30, 2024, the People did not file their certificate of compliance. The court adjourned the case to November 14, 2024, for the People to file their certificate of compliance and statement of readiness. In the interim, the People filed their certificate of compliance and statement of readiness on October 18, 2024. The People are charged from September 30, 2024 to October 18, 2024, a period of 17 days.

On November 14, 2024, the court, at the defense counsel's request, ordered the defendant to be examined to determine his fitness to proceed pursuant to Article 730 of the CPL. The court adjourned the case to December 18, 2024, for the results of the Article 730 examination. No time is charged to the People.

On December 18, 2024, the court and the parties confirmed the findings that the defendant was fit to proceed. The court then set a motion schedule for the defendant to file his omnibus motion and adjourned the case to February 3, 2025, for decision on the defendant's motions. No time charged to the People.

On February 3, 2025, the court adjourned the case to March 5, 2025, for decision on the defendant's motions. No time is charged to the People.

This court, having found the People's certificate of compliance and statement of readiness of October 18, 2024, valid, finds no time is charged to the People after October 17, 2024. Thus, the total amount of time charged to the People is 81 days, a period that is less than ninety-day speedy trial limitation pursuant to CPL § 30.30(2)(a). Therefore, the defendant's motion for release is denied.

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.

The defendant's request for a Bill of Particulars is granted to the extent provided by the People pursuant to CPL § 200.95.

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).

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 [*5]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.

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.