Pretrial motion (CPL §255.10) by the defendant for relief in the nature of dismissal or reduction of an indictment, granting discovery and/or a bill of particulars, preclusion and/or suppression of evidence, and other relief.

The defendant is charged by an eight-count indictment with the commission of the crimes [*2]of assault in the first degree (Penal Law §120.10[3]), a class B violent felony, burglary in the second degree (Penal Law §140.25[2]), a class C felony, two counts of coercion in the second degree (Penal Law §135.65[1]), class D felonies, unlawful imprisonment (Penal Law §135.10), a class E felony, two counts of unlawfully dealing with a child (Penal Law §260.20[2]), class A misdemeanors, and criminal mischief in the fourth degree (Penal Law§145.00[1]), a class A misdemeanor. The charges arise out of an incident alleged to have occurred on February 22, 2008 in the Town of Ticonderoga, Essex County.

The defendant moves to dismiss the indictment on the grounds that the evidence before the grand jury was not legally sufficient to establish the offenses charged or any lesser included offense (CPL §210.20[1][b], §210.30), and that the grand jury proceeding was defective (CPL §210.20[1][c], §210.35). The defendant also moves to inspect the grand jury minutes (CPL §210.30).

The defendant's motion to inspect the grand jury minutes is granted. The evidence before the grand jury established that on February 22, 2008, a Friday, Sierra te'Riele, the defendant's twenty year old girlfriend was at the home of Michele Jordan. Also present were Jordan's stepfather, her mother and a friend of Jordan's parents. While there, te'Riele and Jordan, also twenty years old, consumed alcohol provided by the defendant.

Later, te'Riele and Jordan went to the home of Seth Gould, who resided with his grandmother, located on Lonergan Lane in Ticonderoga, New York. Neither Gould, who was working, nor his grandmother, who was in the hospital, were there. Gould had gone to work at 8:00 p.m., leaving Michael Alteri and Nick Treadway at the Gould residence. te'Riele and Jordan arrived after Gould had gone to work, but Gould testified that he "did not mind" that they were at his grandmother's home. Gould did not testify that he left any instructions with Alteri and Treadway concerning who could, and who could not, be at his grandmother's home while he was at work.

After hearing a knock on the door, te'Riele opened the door and the defendant walked in. The defendant told te'Riele that she had to leave with him, but she told him that she was not leaving. Jordan positioned herself between the defendant and te'Riele and told the defendant that he had to leave, that he was not invited, and that she was going to call the police. The defendant pushed Jordan, and she fell to the floor. The defendant then cleared off a table, breaking two bobblehead dolls worth approximately twenty dollars. He grabbed te 'Riele and dragged her down the stairs and outside. te'Riele testified that she decided to go with him instead of making it worse on everyone else.

Chris Hanley drove the defendant and te'Riele to their joint residence on Myers Street in Ticonderoga. While there, they argued and te'Riele asked the defendant to leave. When she attempted to leave the defendant stepped in front of her. He told her that if she left he "was going [*3]to come after" her. He then moved out of the way, and she left.

As she was walking fast down the road, the defendant tackled her. He ended up on top of her and told her that he was going to kill her. The defendant, using his open hand, then hit her in the face an unknown number of times. After grabbing at her face with both hands, he grabbed her neck and squeezed so that she could not breathe and became dizzy. She told him that she loved him and wanted to be with him, and he stopped. She slipped out of her jacket and crawled away. After getting on her feet she ran up the road towards a police officer with the defendant chasing her. During the incident, her jewelry was torn off, including two earrings in her left ear.

te'Riele went to the hospital at around 11:00 p.m. where she was examined by Elizabeth Meehan, a registered nurse. Meehan observed blood from te'Riele's nose and ear, and her nose, eyelids and face were swollen. Meehan also observed abrasions on her cheek, marks on the sides of her neck, and two red marks on her back, one under her bra approximately four inches across and the other below her waistline. te'Riele was cleaned up and given a tetanus shot.

Inspection of the minutes and voting sheet filed with the Court reveal that a quorum of at least sixteen grand jurors were present during the presentation of evidence and at the time the district attorney instructed the grand jury on the law, and at least 12 of those grand jurors voted to indict the defendant.

Count one charges the defendant with the crime of assault in the first degree based upon "recklessly [engaging] in conduct which creates a grave risk of death to another person" "[u]nder circumstances evincing a depraved indifference to human life" (Penal Law §120.10[3]). The district attorney's instructions to the grand jury on this count did not include the definition of or instruction for "depraved indifference to human life".

"Failure to read statutory definitions of terms whose meaning is obvious will not be fatal (see, People v. Rockwell, 97 AD2d 853, 854, 469 NYS2d 252; see also, People v. Scott, 175 AD2d 625, 572 NYS2d 562, lv. denied 78 NY2d 1130, 578 NYS2d 888, 586 NE2d 71)" (People v. Levens, 252 AD2d 665, 666-667, 677 NYS2d 390, 392 leave to appeal denied 92 NY2d 927, 680 NYS2d 468, 703 NE2d 280). The term "depraved indifference" is not such a term. "[D]epraved indifference to human life is a culpable mental state" (People v. Feingold,7 NY3d 288, 294, 819 NYS2d 691, 695, 852 NE2d 1163, 1167), the meaning of which has been the subject of considerable judicial analysis and revision (see People v. Feingold, supra ; People v. Suarez, 6 NY3d 202, 811 NYS2d 267, 844 NE2d 721; 60 NY2d 270, 457 NE2d 704, 469 NYS2d 599; see also People v. Register, 60 NY2d 270, 469 NYS2d 599, 457 NE2d 704).

The failure to instruct the grand jury on "depraved indifference to human life" (see CJI2d [NY] Penal Law §120.10[3]) is fatal here, and count one must be and is dismissed. [*4]

Counts three and four, charge the defendant with the crime of coercion in the first degree (Penal Law §135.65[1]) occurring at the Gould residence on Lonergan Lane and their joint residence on Myers Street, respectively. In submitting the case to the grand jury, the People instructed the grand jury on the law but did not specify the location, or anything else, for either count. The minutes and vote sheet do not state the location or other facts upon which the grand jury voted to indict the defendant on each count. Similarly, neither the minutes of the grand jury proceedings nor the vote sheet identify the alleged victim, respectively, for counts six and seven, charging the defendant with unlawfully dealing with a child in the first degree (Penal Law §260.20[2]) by furnishing alcohol.

Although the indictment prepared by the district attorney's office contains an accusatory part and a factual statement (CPL §210.50[4] and [7]) for these four counts, including the location of the alleged coercion for each of counts three and four and the identity of the alleged victim in each of counts six and seven, there is nothing in the record of the grand jury proceedings to indicate that the grand jury determined these matters. The procedure utilized here gives the appearance that the grand jury only voted on the accusatory part of the indictment, leaving it to the People to determine and fill in the factual statement supporting each count, including which coercion count applied to the events at the Lonergan Lane and Myers Street locations, and who the victim was for each of counts six and seven.

"The grand jury is the exclusive judge of the facts with respect to any matter before it" (CPL §190.25[5]). Since the record is silent as to a determination by the grand jury that count three is based upon the events at Lonergan Lane, count four is based upon the events at Myers Street, te'Riele is the person to whom the defendant furnished alcoholic beverages in count six, and Jordan is the person to whom he furnished such beverages in count seven, all of those counts must be and are dismissed.

As to the remaining counts of burglary in the second degree (count two), unlawful imprisonment (count five), and criminal mischief in the fourth degree (count eight), the court has reviewed the grand jury minutes to determine whether sufficient evidence was presented to support each and every count in the indictment.

"[A]n indictment is presumed to be based on legal and sufficient evidence" (People v. Bergerson, 17 NY2d 398, 402, 218 NE2d 288, 290, 271 NYS2d 236, 238; see also People v. Howell, 3 NY2d 672, 675, 171 NYS2d 801, 803, 148 NE2d 867, 868). In determining the sufficiency of the evidence before the grand jury, including proof encompassing any requisite culpable mental state (People v. Mayo, 36 NY2d 1002, 374 NYS2d 609, 337 NE2d 124; People v. Lott, 104 AD2d 710, 480 NYS2d 597; People v. Delameter, 96 AD2d 629, 464 NYS2d 878), the Court must view such evidence in a light most favorable to the prosecution, and determine whether such evidence, if unexplained and uncontradicted, would constituteprima facie proof so as to warrant a conviction after trial (People v. Swamp, 84 NY2d 725, 730, 622 NYS2d 472, 474, 646 [*5]NE2d 774, 776; People v. Pelchat, 62 NY2d 97, 105, 476 NYS2d 79, 83, 464 NE2d 447, 451; People v. Valles, 62 NY2d 36, 476 NYS2d 50, 464 NE2d 418; People v. Dunleavy, 41 AD2d 717, 341 NYS2d 500, affirmed 33 NY2d 573, 347 NYS2d 448, 301 NE2d 432). "In the context of the Grand Jury procedure, legally sufficient means prima facie, not proof beyond a reasonable doubt" (People v. Mayo, supra at 1004, 374 NYS2d 609, 337 NE2d 124).

"In determining whether the People have reached this stage, all questions as to the quality or weight of the proof should be deferred. In other words if the prosecutor has established a prima facie case, the evidence is legally sufficient even though its quality or weight may be so dubious as to preclude indictment or conviction pursuant to other requirements.' To further illustrate the point the Commission Staff noted that evidence may be legally sufficient' to support a charge although it does not prove guilt beyond a reasonable doubt,' and for that matter, although it does not even provide reasonable cause' to believe that the defendant committed the crime charged.' (See Commission Staff Comment to Proposed CPL 35.10, now CPL 70.10)" (People v. Sabella , 35 NY2d 158, 167, 359 NYS2d 100, 108, 316 NE2d 569, 574-575).

As to count two, charging the defendant with burglary in the second degree (Penal Law §140.25[2]), the prosecution was required to establish not only that he knowingly entered or remained unlawfully in a dwelling but also that contemporaneously therewith he intended to commit a crime therein (see People v. Gaines, 74 NY2d 358, 362-363, 547 NYS2d 620, 546 NE2d 913; People v. Lewis, 5 NY3d 546, 548, 807 NYS2d 1, 2, 840 NE2d 1014, 1015). Here, the evidence does not establish entry with intent to commit a crime, but it is sufficient to support a charge that he remained in the Gould residence after he was told to leave by Jordan and that he then purposefully swept the bobblehead dolls off a table and grabbed te'Riele, dragging her from the residence. It is an issue at trial whether "a lawful order not to . . . remain" was "personally communicated by the owner of such premises or other authorized person" (CPL §140.00[5]).

This same evidence also is sufficient to support the charge of criminal mischief in the fourth degree alleged in count eight (Penal Law 145.00[1]).

Also, the evidence established that after te'Riele left the joint residence and was walking along Myers Street in Ticonderoga, the defendant tackled her. He then restrained her while he struck her in the face numerous times, tore two earrings out of her left ear, and choked her to the point of dizziness. Sufficient evidence was presented to support count five charging unlawful imprisonment in the first degree (Penal Law §135.10; People v. Peters, 1 AD3d 270, 767 NYS2d 433, leave to appeal denied 1 NY3d 632, 777 NYS2d 31, 808 NE2d 1290).

The district attorney refused to allow one of the arresting police officers to answer a grand juror's question concerning whether the defendant was intoxicated at the time of the arrest, stating that it was irrelevant. Evidence of intoxication "is relevant to negative an element of the crime charged" (Penal Law §15.25), and may negate the culpable mental states of intent and knowledge [*6](see CJi2d [NY] Penal Law §15.25). Before a charge on intoxication may be given to a jury, there must be "sufficient evidence of intoxication in the record for a reasonable person to entertain a doubt as to the element of intent on that basis (

Although evidence of intoxication can only reduce the gravity of the offense, similar to a mitigating defense, and the People are not required to submit evidence of mitigating defenses to a grand jury (People v. Harris, 98 NY2d 452, 749 NYS2d 766, 779 NE2d 705; People v. Valles, 62 NY2d 36, 476 NYS2d 50, 464 NE2d 418), the refusal to permit the question to be answered and allow an inquiry by the grand jury was misleading, violated the prosecution's duty of "fair dealing with the accused" (People v. Pelchat, 62 NY2d 97, 105, 476 NYS2d 79, 83, 464 NE2d 447, 451), and constitutes error."[T]he accused is entitled to a proceeding which involves a fair presentment of the facts, permitting an intelligent assessment of the merit to the prosecution's case" (People v. Karp, 158 AD2d 378, 379, 551 NYS2d 503, 504). The grand jury was prevented from pursuing a relevant inquiry so that it could assess whether sufficient evidence of intoxication existed and, if so, negated a culpable mental state required for burglary in the second degree (intent and knowledge) and criminal mischief in the fourth degree (intent). Since the defendant will be able to pursue the issue of intoxication at trial, this error alone does not justify dismissal of the indictment.

During the presentation of Meehan's testimony, the district attorney improperly elicited hearsay testimony from her concerning prior bad acts on the part of the defendant:

"QIf you need to refer to the certified medical records which are in evidence now, when you spoke to Sierra Teriele, did she describe to you any incidents like this occurring in the past?

AYes. She said that this wasn't the first time but it was the worst."

With certain exceptions, criminal trial rules of evidence are also applicable to grand jury proceedings (CPL §190.30; People v. Mitchell, 82 NY2d 509, 605 NYS2d 655, 626 NE2d 630). Evidence of a defendant's prior uncharged criminal conduct is generally not admissible (People v. Molineux, 168 NY 264, 61 NE 286; People v. Fiore, 34 NY2d 81, 356 NYS2d 38, 312 NE2d 174).

The rule excluding evidence of uncharged crimes is based upon the human tendency more readily "to believe in the guilt of an accused person when it is known or suspected that he has previously committed a similar crime" (People v. Molineux, 168 NY 264, 313, 61 NE 286; People v. Allweiss, 48 NY2d 40, 47, 421 NYS2d 341, 396 NE2d 735; see People v. Zackowitz, 254 NY 192, 198, 172 NE 466) and is intended to eliminate the danger that a jury may convict to punish the person portrayed by the evidence before them even though not convinced beyond a reasonable doubt of his guilt of the crime of which he is charged. (People v. Ventimiglia, 52 NY2d 350, 359, 438 NYS2d 261, 264, 420 NE2d 59, 62).

No curative or limiting instruction was given to the grand jury. The prejudicial effect of this testimony - that the defendant was predisposed to the charged conduct and deserving of punishment - was heightened by a discussion moments before Meehan's testimony between the district attorney and the grand jury regarding questions posed by grand jurors. After instructing the grand jury that "[w]e can only answer questions that are legally relevant to the proceeding before you", the district attorney advised the grand jury that it was not proper for Jordan to be asked whether this incident was"the first time that this has happened". The grand jury was advised that such a question would only have been properly asked of te'Riele. The district attorney then went on to advise the grand jury that she "might be able to address that question another way". Despite the apparent possibility of substantial prejudice to the defendant, particularly in light of the fact that the defendant did not testify, this error on its own does not warrant dismissal of the indictment due to the overwhelming evidence of guilt on the part of the defendant (see People v. Avant, 33 NY2d 265, 271, 352 NYS2d 161, 166, 307 NE2d 230, 233; People v. Thompson, 116 AD2d 377, 382, 501 NYS2d 381, 384).

The minutes also reveal that the case was presented to the grand jury on two different days, March 7 and 14, 2008. On the first day of presentment, and prior to any evidence being presented, one or more jurors responded affirmatively to questions posed by the district attorney regarding their knowledge or familiarity with the defendant and at least four witnesses. On the second day of presentment, two jurors indicated that they knew Meehan, and two jurors also knew Gould. The minutes reflect at least five instances of a grand juror acknowledging that he/she knew the defendant or a witness. It is impossible to determine from the minutes how many different grand jurors responded affirmatively to knowing the defendant or any witness as there is no grand juror number or other identifying information recorded in the minutes. The district attorney inquired of each juror whether they could treat the testimony of the known witness"like anyone else's" and be "fair and impartial", and each answered affirmatively. No inquiry was made as to how a juror knew the defendant and each witness in order to determine whether a relationship existed such that the juror should not hear and vote on the case.

Although a district attorney is not required to voir dire grand jurors once empaneled (see People v. Zona, 18 Misc 3d 1117(A), 856 NYS2d 502), the district attorney was obligated to determine the potential bias of each grand juror who indicated knowledge of the defendant or a witness (People v. Revette, 48 AD3d 886, 851 NYS2d 299). [*8]

"[A] close relationship between a grand juror and a witness raises the real risk of potential prejudice (see State v. Penkaty, 708 NW2d 185, 198 [Minn. 2006]; People v. Cipolla, 163 Misc 2d 144, 145, 619 NYS2d 939 [1994]; State v. Murphy, 110 NJ 20, 27, 538 A2d 1235, 1238 [1988]; see also CPL 190.20[2][b] [a grand juror should not serve if "incapable of performing his (or her) duties because of bias or prejudice"]). Armed with knowledge of such a relationship, the prosecutor, who wields "substantial control over the [g]rand [j]ury" and has a "duty of fair dealing" (People v. Huston, 88 NY2d at 406, 646 NYS2d 69, 668 NE2d 1362 [internal quotation marks and citations omitted]), should ensure fairness and, if there is any doubt with regard thereto, bring the potential bias to the attention of the court or otherwise excuse the grand juror ( see People v. La Duca, 172 AD2d 1054, 1055, 569 NYS2d 308 [1991]; People v. Cipolla, 163 Misc 2d at 148, 619 NYS2d 939). (Id., at 887, 851 NYS2d at 301).

The grand jury acts "as a buffer between the State and its citizens, protecting the latter from unfounded and arbitrary accusations" (People v. Calbud, Inc., 49 NY2d 389, 396, 426 NYS2d 238, 242, 402 NE2d 1140, 1144), and serving as a "shield against prosecutorial excesses" (People v. Huston, 88 NY2d 400, 405, 646 NYS2d 69, 72, 668 NE2d 1362, 1366). In grand jury proceedings, a district attorney is charged with a "unique and powerful dual role" (People v. Dzeloski, 161 Misc 2d 867, 868, 615 NYS2d 624, 626) "of advocate and public officer, charged with the duty not only to secure indictments but also to see that justice is done" (People v. Lancaster, 69 NY2d 20, 26, 511 NYS2d 559, 562, 503 NE2d 990, 993; see also People v. Pelchat, 62 NY2d 97, 105 , 476 NYS2d 79, 83, 464 NE2d 447, 451). "In his position as a public officer he owes a duty of fair dealing to the accused and candor to the courts" (People v. Pelchat, supra ), "requiring the exercise of completely impartial judgment and discretion" (People v. DiFalco, 44 NY2d 482, 487, 406 NYS2d 279, 282, 377NE2d 732, 735).

"The exceptional remedy of dismissal is . . . warranted only where a defect in the indictment created a possibility of prejudice" (People v. Huston, supra at 409, 646 NYS2d at 74, 668 NE2d at 1368), a standard which "is very precise and very high" (People v. Darby, 75 NY2d 449, 455, 554 NYS2d 426, 553 NE2d 974). Actual prejudice need not be shown (CPL 210.35[5]; see People v. Sayavong, 83 NY2d 702, 709, 613 NYS2d 343, 347, 635 NE2d 1213, 1217). Dismissal is justified in instances of repeated and pervasive prosecutorial misconduct (People v. Huston, supra ). But "not every improper comment, elicitation of inadmissible testimony, impermissible question or mere mistake renders an indictment defective", and "isolated instances of misconduct will not necessarily impair the integrity of the Grand Jury proceedings or lead to the possibility of prejudice" (Id., at 409, 646 NYS2d at 75, 668 NE2d at 1368).

Although it is a close question here, the cumulative effect of the prosecution's errors do not [*9]justify dismissal of the entire indictment. All twenty members of the grand jury voted to indict the defendant on each count. At least nine of the grand jurors would have to be found "incapable of performing his [or her] duties because of bias or prejudice" (CPL 190.20[2][b]), a number which is not supported by this record. A determination that one or more grand jurors were biased against the defendant would be speculative. Since the evidence of the defendant 's guilt was overwhelming, and the defendant is not foreclosed from presenting evidence of intoxication at trial, the errors here do not meet the "very precise and very high" threshold for dismissal (People v. Darby, supra ; People v. Avant, supra ; People v. Thompson, supra ).

The defendant moves to preclude the prosecution from introducing into evidence at the trial any statements made by the defendant to law enforcement that are not reflected in the CPL §710.30 notice which was served. Alternatively, the defendant seeks a Huntley hearing (People -v- Huntley, 15 NY2d 72, 255 NYS2d 838, 204 NE2d 179) to determine the voluntariness of any statements allegedly made by the defendant and a Dunaway hearing (Dunaway v. New York, 442 US 200, 99 SCt 2248, 60 LEd2d 824) to determine if the statements attributed to the defendant by law enforcement were the products of an impermissible arrest. In their response to the motion, the People concede that a hearing is required on the statements identified in the §710.30 statement, but do not indicate one way or the other whether there are any statements by the defendant other than those identified in the notice.

The defendant's motion to preclude the use of any statements made by the defendant to law enforcement other than those identified in the CPL §710.30 notice is granted. A decision on the defendant's motion to suppress is reserved so that a hearing may be conducted pursuant to CPL §710.60(4) on July 18, 2008 at 1:30 p.m.

The defendant claims that the prosecution has failed to comply with the preliminary conference order (22 NYCRR §200.12) requiring the prosecution to furnish all discovery required by CPL §240.20 including Brady material (Brady v. Maryland, 373 US 83, 83 SCt 1194, 10 LEd2d 215).

Discovery in a criminal case is strictly controlled by statute (CPL Article 240; see Pirro -v- LaCava, 230 AD2d 909, 910, 646 NYS2d 866, 867; see also Preiser, Practice Commentaries, McKinney's Cons. Laws of NY, Book 11A,CPL 240.10, at 333). Brady material includes any information that would be "favorable to the defense, material either to guilt or punishment, or affecting the credibility of prosecution witnesses" (People v Baxley, 84 NY2d 208, 213, 616 NYS2d 7, 10, 639 NE2d 746, 749), irrespective of whether the prosecution credits such information (People v. Robinson, 133 AD2d 859, 860, 520 NYS2d 415, 416). "In the context of a trial in which the credibility of the sole witness connecting the defendant to the crime is paramount, the failure to disclose that the version of events given by that witness may be at variance with the truth is a clear violation of the Brady obligation" (People v. Lantigua, 228 AD2d 213, 220, 643 NYS2d 963, 968). Moreover, information required to be disclosed pursuant to Brady encompasses evidence [*10]and information actually and constructively within the possession of the prosecution or accessible to it, including evidence and information in the possession or control of persons or agencies considered an "arm" of the prosecution or part of the "prosecution team" (see United States v. Avellino, 136 F3d 249, 255; United States v. Morell, 524 F2d 550, 555; People v. Steadman, 82 NY2d 1, 603 NYS2d 382, 623 NE2d 509; People v. Lumpkins, 141 Misc 2d 581, 533 NYS2d 792).

The Court has considered the defendant's motion and the prosecution's response, including the prosecution's affirmative representation that all law enforcement materials have been reviewed and there is no Brady material. The prosecution shall furnish the defendant with the following within ten (10) days of this decision and order: (a) copies of any and all notes, summaries and other writings made by any law enforcement agent or a person acting under the direction thereof concerning statements attributed to the defendant; (b) photographs not previously furnished; (c) a true and complete copy of all 911 tape recordings; and (d) anyBrady material. Failure to so comply may result in sanctions including but not limited to prohibition of the introduction of certain evidence or the calling of certain witnesses, and/or the reversal of conviction (see CPL §240.70, §240.75).

The purpose of a bill of particulars is to obtain from the prosecutor a written statement specifying "items of factual information which are not recited in the indictment and which pertain to the offense charged and including the substance of each defendant's conduct encompassed by the charge which the people intend to prove at trial in their direct case, and whether the people intend to prove that the defendant acted as principal or accomplice or both . . . " (CPL §200.95[1][a]). The prosecutor is not required to include matters of evidence in the bill of particulars as to how the People intend to prove their case (CPL§200.95[1][a]).

The Court has considered the defendant's motion and the prosecution's response, and the defendant's motion is granted to the extent that, within ten (10) days of this decision and order, the prosecution shall furnish a statement of particulars as follows with respect to each remaining count: (a) the approximate time when it is claimed the offense was committed; (b) the approximate location of the commission of the offense, with greater specificity than a street name; (c) the alleged conduct of the defendant which the prosecution will claim at trial constitute commission of the crime charged. With respect to count eight, the prosecution shall also furnish particulars identifying the items of property allegedly damaged by the defendant and the owner(s) of each item.

The defendant seeks pre-trial disclosure of Rosario material (People v. Rosario, 9 NY2d 286, 213 NYS2d 448, 173 NE2d 881). Criminal Procedure Law §240.45(1) governs the disclosure of Rosario material and requires disclosure occur only after the jury has been sworn in and prior the delivery of the prosecutor's opening statement.

"Although a trial court is given limited discretion to regulate discovery pursuant to CPL [*11]240.50(1), this discretion does not authorize an order expediting the time frame for production [of Rosario material] unless the People opt for voluntary early disclosure ( see People v. Colavito, supra at 427, 639 NYS2d 996, 663 NE2d 308 {87 NY2d 423} )." (Briggs v. Halloran, 12 AD3d 1016, 1017, 785 NYS2d 578, 580)

The Court will deem the defendant's motion as a request pursuant to §240.43, and the prosecution is directed to notify the defendant and the Court in writing not less than 3 court days prior to the commencement of jury selection, of all specific instances of his alleged prior uncharged criminal, vicious or immoral conduct which the prosecution intends to use at trial for purposes of impeaching his credibility. Should the defendant object thereto, he shall file a written request for a hearing at least one court day prior to the commencement of jury selection.

The prosecution may also offer evidence of a defendant's prior convictions or uncharged crimes as part of its prima facie case (People v. Molineux, 168 NY 264, 61 NE 286; People v. Ventimiglia, 52 NY2d 350, 438 NYS2d 261, 420 NE2d 59), but must first request a pre-trial hearing to determine the admissibility of such evidence (People v. Valencia, 263 AD2d 874, 695 NYS2d 186). Similarly, the defendant may move prior to trial for an order limiting or prohibiting the use of defendant's prior convictions to impeach his credibility as a witness (People v. Sandoval, 34 NY2d 371, 357 NYS2d 849, 314 NE2d 413), and in so moving the defendant must specify the prior criminal acts for which a ruling is sought (see People v. Sandoval, supra at 378, 357 NYS2d at 856, 314 NE2d at 418; People v. Matthews, 68 NY2d 118, 123, 506 NYS2d 149, 151, 497 NE2d 287, 289). In either case, the parties shall proceed by motion filed and served not less than fourteen (14) days, and returnable not less than three (3) court days, prior to the scheduled commencement of jury selection specifying therein the convictions and/or uncharged crimes for which a ruling is sought. Failure to comply shall preclude the appropriate party from using, or preventing the use of, such evidence. [*12]

To the extent that this Decision and Order has not addressed any request for relief in the defendant's pretrial motion, the same is hereby denied.

IT IS SO ORDERED.

ENTER

____________________________________

Richard B. Meyer

J.C.C.