On remand from the Appellate Division, Third Department, defendant, Raymond Snyder, moves pursuant to CPL §210.40(e) for dismissal of Indictment 70019-21 based upon alleged gross misconduct of law enforcement and the People in the investigation, arrest, and prosecution of the defendant; or in the alternative, preclusion of unnoticed expert witnesses consistent with the Court's April 26, 2022, Decision and Order (Rounds, J.).^[FN1] Defendant further moves pursuant to CPL §§40.30(3), 200.80, 210.20 and 220.25 to dismiss Superseding Indictment 70740-23. The People appear and oppose the relief sought. The People further seek leave to reargue the Court's preclusion orders under CPL §710.30 with respect to the identification testimony of Eleanor Gould. The Court heard oral argument from both parties on May 16, 2023, and the matter is now fully submitted.

In the early morning hours of July 11, 2020, Romero Underwood was shot in the back and killed after answering the front door of his home located on the second floor of 52 St. James Street in the City of Kingston. Underwood, after hearing someone knocking on his front door, opened the door and was violently attacked by two male assailants. Underwood called out for his girlfriend to call the police. Two gunshots rang out and Underwood was struck once in the back with a bullet perforating his aorta. He collapsed on the floor bleeding and mortally wounded. The two assailants fled the scene of the murder. An ambulance and the City of Kingston Police responded to the girlfriend's call for aid. Underwood was checked by responding officers who determined he had no pulse. Underwood was later pronounced dead at the hospital.

An investigation into Underwood's murder commenced, and evidence found at the scene of the murder was secured by forensic investigators. Swabs of fresh, undried blood found on the wall of the staircase where Underwood was slain were secured. This evidence was matched to DNA of the defendant, Raymond Snyder, with the probability of selecting an unrelated individual with a profile matching this blood stain being less than 1 in 320 billion. Swabs of blood from the floor where Underwood collapsed were secured and were matched to his DNA.

Underwood's girlfriend told police that she heard a car start shortly after Underwood was murdered and that it drove off towards Broadway. Detective Benny Reyes conducted a canvass of available video cameras in the area and observed a white SUV travel past a surveillance camera travelling toward Broadway on St. James Street shortly after the murder. He also determined that a similar white SUV was parked in front of Underwood's home and then drove to East St. James Street. An individual later identified as Callin Lemon was observed entering and exiting the same white SUV near 22 East St. James Street. As a result of these video observations, a search warrant was obtained for Callin Lemon's residence located at 22 East St. James Street.^[FN2]

The search of Lemon's residence revealed two handguns: one 9-mm Glock semi-automatic handgun and one 40-caliber Glock semi-automatic handgun. A 40-caliber bullet casing and bullet, and a 9-mm caliber bullet were secured at the scene of the murder. The ballistic evidence secured at the murder scene matched the caliber of the handguns found in Lemon's residence.

DNA evidence was secured from the 9-mm handgun on the trigger/trigger guard, grip, and slide. DNA matching the victim, the major contributor, was found on the slide, which is 66.7 octillion times more probable than a coincidental match to an unrelated African American person. Additional DNA tests were conducted by Cybergenetics in May of 2023 further matching the defendant and the victim to the 9mm handgun. DNA on the trigger/trigger guard matched Underwood and defendant. This DNA match to defendant is 41.1 quadrillion times more probable than a coincidental match to an unrelated African American person; while this DNA match to Underwood, the victim, is 106 sextillion times more probable than a coincidental match to an unrelated African American person. DNA on the grip also matched both the defendant and the victim. This DNA match to defendant is 14.4 million times more probable than a coincidental match to an unrelated African American person, while a match of the DNA to the victim is 102 quadrillion times more probable than a coincidental match to an unrelated African American person. DNA evidence secured from the 40-caliber handgun was matched to Callin Lemon's DNA.^[FN3]

When police searched Lemon's residence, they also secured swabs of blood found on a wall of the home. The DNA from the blood swab found at Lemon's residence matched the defendant with the likelihood of selecting an unrelated individual that matched this item being less than 1 in 320 billion.

Police also obtained a search warrant for the white SUV. Blood swab evidence was secured from the vehicle, which matched the defendant with the likelihood of selecting an unrelated individual that matched this item being less than 1 in 320 billion.

Investigators from the Kingston Police Department spoke with the defendant on July 13, 2020, at a motel where he was staying and observed an injury to defendant's hand. This interaction was captured on one of the investigator's body-worn camera. The video footage shows the defendant exiting the motel room and thereafter invoking his right to counsel. Defendant was then taken to the Kingston Police Department where he was interviewed for approximately 5 hours. This interview was also recorded. During the interview, defendant was observed to have a bandage on his hand. Defendant repeatedly denied medical attention for his hand; however, law enforcement nonetheless contacted local EMS. Prior to the arrival of EMS, defendant removed the bandage and placed it on the table in the interview room. Defendant was removed from the interview room by EMS and placed in an ambulance. Thereafter, the bandage was collected and secured from the interview room.

Five months later, on January 21, 2021, the defendant was arrested for the murder of Romero Underwood. On May 14, 2021, defendant was indicted by an Ulster County Grand Jury under Indictment 70019-21 and charged with Murder in the Second Degree (Penal Law ("PL") §125.25[3]); two counts of Robbery in the First Degree (PL §160.15[1] and [2]), and two counts of Burglary in the First Degree (PL §140.30[1] and [2]). On May 17, 2021, the defendant was arraigned with assigned counsel, Bradford White, Esq.^[FN4] At this time, additional discovery was, at least in part, provided by the Ulster County District Attorney's Office (hereinafter "UCDA") through its digital evidence management system (hereinafter "DEMS") (to be discussed further below). Sometime in October of 2021, the matter was scheduled for a jury trial to commence on April 25, 2022.

On or about October 12, 2021, the UCDA and defense counsel executed a Stipulation in Lieu of Motions consenting to the Court's in camera review of the grand jury minutes to determine the legal sufficiency of the evidence supporting the charges in the indictment and the adequacy of the legal instructions given to the grand jury. The parties also consented to the following evidentiary hearings: Huntley, Mapp/Dunaway, Sandoval, and Molineux/Ventimiglia. The Court notes that with respect to the People's identification witness, Eleanor Gould, defendant specifically declined a Wade hearing, choosing instead to move for preclusion based upon the People's alleged failure to comply with the notice requirements of CPL §710.30.

The Court (Rounds, J.) conducted an in camera review of the grand jury minutes, and thereafter, issued a Decision and Order dated November 9, 2021, dismissing the robbery counts (counts two and three of Indictment 70019-21) based upon a lack of sufficient evidence that any property was stolen from the victim by the defendant. The People did not re-present these charges to the Grand Jury.

The Huntley, Mapp/Dunaway, Sandoval, and Molineux/Ventimiglia hearings were commenced on February 8, 2022, and were continued on March 21, 2022. On the initial hearing date, defendant raised numerous issues pertaining to nondisclosure of discovery material, as well as the failure of the People to provide notice pursuant to CPL §710.30 with respect to identification testimony to be given by Eleanor Gould. The Court directed the production of [*2]laboratory Rosario material by February 12, 2022,^[FN5] and further directed the parties to confer to resolve their discovery dispute. It is unknown if the parties conferred to resolve the discovery dispute, as directed by the Court.

On March 2, 2022, defendant filed an omnibus motion seeking preclusion of certain evidence based upon alleged discovery violations. Defendant asserted that the People had failed to comply with CPL Art. 245 by failing to provide a witness list, expert witness disclosure, laboratory reports, Brady material, and Giglio material or police disciplinary material. Defendant also moved to preclude identification testimony and any unnoticed statements made by the defendant for failure to file notice pursuant to CPL §710.30. The People opposed the motion.

At the continued pre-trial hearing on March 21, 2022, the People requested a Rodriquez hearing because it was the People's contention that the identification testimony of Ms. Gould was confirmatory in nature, and therefore, notice under CPL §710.30 was not required. The Court tentatively scheduled a Rodriguez hearing to be held on April 8, 2022, just seventeen days prior to the scheduled trial date. On April 8, 2022, the People's witness had COVID, and the hearing could not proceed. Instead, on consent of the People and defendant, the People agreed to submit a proffer of the subject matter of the witness's testimony, consisting of the witness's Grand Jury testimony, which they would elicit at the Rodriquez hearing, and the Court would determine from that proffer whether a Rodriguez hearing would be granted.

On or about April 13, 2022, defendant filed a motion in limine, pursuant to CPLR 4504(a), seeking preclusion of certain evidence pertaining to defendant's medical treatment and/or refusal of medical treatment based upon the People's violation of defendant's physician/patient privilege when law enforcement obtained defendant's medical records without his consent or knowledge. The People opposed the motion.

On or about April 15, 2022, ten days before scheduled jury selection, the People made an electronic disclosure containing over 800 video clips and surveillance videos, including some police body-worn camera footage, constituting over 400 GB of stored memory. This disclosure revealed that there was police body worn camera footage of law enforcement's encounter with defendant on July 13, 2020, during which defendant invoked his indelible right to counsel.

On April 18, 2022, the Court (Rounds, J.) issued a Decision and Order addressing that portion of defendant's omnibus motion seeking preclusion of identification evidence for failure to provide notice under CPL §710.30 and the People's request for a Rodriguez hearing. The Court found, without holding a Rodriguez hearing, that "as a matter of law . . . . the nature, duration, and extent of the prior contacts between Eleanor Gould and the defendant are insufficient as a matter of law to trigger the 'confirmatory identification' exception to the notice requirements of CPL §710.30." Thus, the Court precluded the People from offering any testimony at trial that Eleanor Gould identified the defendant as "Rome Runner" or that she knew the defendant prior to the commission of the crimes set forth in the indictment. In addition, the Court precluded Eleanor Gould from identifying the defendant in open court should the People choose to call her as a witness on their direct case.

The Court held a hearing on April 18, 2022, to hear argument on the remainder of defendant's omnibus motion made pursuant to CPL Art. 245 seeking to preclude certain evidence [*3]based upon alleged discovery violations. At the hearing, the People requested that the Court reconsider its determination regarding Ms. Gould's testimony and hold a Rodriguez hearing. The People indicated that Ms. Gould was present and available to testify. The Court denied the People's application for reconsideration.

On or about April 20, 2022, defendant filed another motion in limine, in which he sought preclusion of all video evidence that had been turned over by the People on April 15, 2022, as well as preclusion of any testimony with respect to the video recordings and their subject matter. The People opposed the motion.

Following the conclusion of the above hearings and consideration of the submissions of the parties, the Court (Rounds, J.) issued four decisions and orders addressing the various evidentiary issues and alleged discovery violations, three of the decisions are dated April 22, 2022, and one is dated April 26, 2022.

The Court issued the following suppression rulings following the Huntley, Mapp/Dunaway, Sandoval, and Molineux/Ventimiglia hearings:

• Defendant's videotaped interview conducted on July 13, 2020, including any statements made therein were suppressed and could not be used by the People in their case-in-chief, and could only be used for impeachment purposes if the defendant testified.

• The bandage removed from defendant's hand and seized by police on July 13, 2020, and any testimony relative to the bandage or forensic testing done with respect to the bandage were suppressed and could not be used by the People in their case-in-chief, and could only be used for impeachment purposes, if the defendant testified.

• The People were permitted to offer the cell phone seized from the defendant's person on January 20, 2021, into evidence.

• The People were permitted to offer Molineux evidence, tailored to fit the Court's previous ruling precluding identification testimony from Eleanor Gould, as follows:

ο "On July 11, 20202, at about 4:55am, Eleanor Gould received a phone call from someone inquiring about the murder victim's whereabouts and whether the victim had crack cocaine. Ms. Gould saw that the call was from a person she had entered into her contacts as "Rome Runner." During the phone conversation, held a few minutes before the victim was killed, Gould told "Rome Runner" that the victim had returned locally and that the victim possessed crack cocaine of a high quality. Gould told "Rome Runner" that the victim was on Rome Runner's block (street where Rome Runner resided at the time.) Rome Runner ended the phone conversation abruptly and, approximately five minutes later, the victim was murdered on that same block."

• If defendant testified, the People could offer on cross-examination that defendant was convicted of a felony on January 11, 2002, and on October 23, 2008, both in the County of Ulster.

• If defendant testified and offered evidence of his good character, the People may use any portion of defendant's criminal history to impeach defendant during cross-examination.

With respect to defendant's motion in limine, pursuant to CPLR 4504(a), seeking to preclude certain video footage, medical records and testimony with respect to defendant's medical treatment and/or refusal to seek medical treatment, the Court issued the following preclusion order:

• The People were precluded from offering into evidence any portion of the medical [*4]records of defendant's treatment rendered by MLSS on July 13, 2020;

• The People were precluded from eliciting any testimony about defendant's medical treatment or statements made by the defendant to law enforcement about his need for or refusal of medical treatment on July 13, 2020;

• The People were precluded from offering into evidence any portion of defendant's videotaped interview held on July 13, 2020, after the defendant left the interview room.

• The People were permitted to elicit testimony from any witness about that witness's first-hand observation of defendant's hand and how it appeared on July 13, 2020.

The Court also issued an order pursuant to CPL Article 245 precluding all video evidence disclosed by the People on April 15, 2022, as well as precluding the People from eliciting any testimony at trial with respect to the videos disclosed as a sanction for failing to comply with the discovery mandates.

Lastly, the Court's Decision and Order dated April 26, 2022, addressed the remainder of defendant's omnibus motion seeking sanctions pursuant to CPL §245.80 for alleged discovery violations. As a result of the People's alleged discovery violations, defendant sought to have the following evidence precluded:

• The buccal swab taken from defendant as ordered by the Court on January 31, 2022, as well as the results of the March 29, 2022, DNA testing performed on the buccal sample;

• The photographs taken of defendant's hands as ordered by the Court on March 21, 2022;

• All testimony at trial regarding any statements made by the defendant to law enforcement and regarding any identification of the defendant by a civilian witness for failure to provide notice under CPL §710.30;

• Testimony of all members of law enforcement at trial for failure to provide impeachment materials in the form of law enforcement disciplinary records;

• Expert witness testimony regarding DNA, ballistics and serology for failure to provide expert witness disclosure.

As outlined in its prior orders, the Court precluded identification testimony from Ms. Gould and suppressed the videotaped interview of defendant. The Court further ruled that the People were precluded from offering in evidence any other statement or identification testimony that had not been adequately and timely noticed under CPL §710.30. The Court found that the People had complied with the discovery statute with respect to disclosure of impeachment material evidence of law enforcement witnesses.^[FN6] The Court further found that the People properly disclosed the buccal swab and report and photographs of defendant's hands, and therefore could offer same into evidence, together with testimony relative to same, except expert testimony. As discussed below, with respect to all expert testimony, the Court offered defendant an election of remedies for the People's failure to provide expert witness disclosure.

The Court found that the expert witness disclosure by the People of a forensic pathologist who performed the victim's autopsy was timely. However, at oral argument, defendant identified three other scientific disciplines for which the People might seek to offer expert [*5]testimony: DNA, ballistics, and serology.^[FN7] The Court found that the People had not made any expert witness disclosure on these topics, and therefore, the Court held that it was compelled to impose a sanction. The Court permitted defendant to elect any of three sanctions, or combination thereof, as a remedy for the People's failure to provide the required expert witness disclosure:

1. An adjournment to review any such expert witness disclosure proffered by the People, and if necessary, to retain a comparable expert of his own; or

2. An adverse inference instruction to the trial jury which, in sum and substance, would inform the jury that the People were required to make expert witness disclosure, that they failed to make any such disclosure and that the People's failure to make any such disclosure is a proper basis for the jury to infer that the failure to make such disclosure inures to the benefit of the defendant; or

3. An order limiting strictly the scope of the testimony of any witness who the People call at trial to give testimony on any scientific issue to the witness's observations and precluding the witness from offering any scientific or expert opinion on the subject matter of his/her testimony.

A scheduling conference was held on April 22, 2022, at which the People requested a two week to one month adjournment of the trial to prepare for same in light of the Court's rulings made that day. Defendant objected to any adjournment stating their readiness to proceed, notwithstanding the discovery violations, as alleged. The Court denied the People's request to adjourn the trial. At oral argument on the instant motion, the parties agreed that at an off-the-record chambers conference, the defense chose preclusion of expert testimony as their sanction for the discovery violation.

Jury selection was sent to commence on the morning of April 25, 2022. That morning, the People appeared and stated that a notice of appeal had been filed with respect to the Court's preclusion and discovery orders,^[FN8] and again, the People requested an adjournment of the trial. The Court denied the People's request, noting that there was no stay issued by the Appellate Division. The People indicated that they could not proceed with trial because their case was legally insufficient given the Court's preclusion orders.^[FN9] The defense again indicated they were [*6]ready for trial. Jury selection proceeded in the People's absence and a jury was selected by the defendant only. On April 27, 2022, the Court proceeded with the trial in the People's absence. After defense counsel made an opening statement, he moved to dismiss the indictment under CPL §290.10. The Court granted the motion and dismissed the indictment.

On or about May 19, 2022, after the Court's dismissal, the People convened another grand jury to re-indict defendant along with a co-defendant, Callin Lemon. On or about June 2, 2022, the People submitted charges to the Grand Jury against the defendant. The Grand Jury voted on June 2, 2022, and returned a true bill charging the defendant with two counts of Murder in the Second Degree (PL §125.25[1] and PL §125.25[3]), one count of Burglary in the First Degree (PL §140.0), and two counts of Criminal Possession of a Weapon in the Second Degree (PL §265.03[1][b][3]).^[FN10] However, Superseding Indictment 70740-23 with respect to this defendant was not signed by the foreperson until December 6, 2023, nor reported to the Court until December 8, 2023, after the Appellate Division granted the People's writ of prohibition.

In August 2022, the People commenced an Article 78 proceeding in the Appellate Division, Third Department seeking a writ of prohibition prohibiting the trial court from enforcing the order of dismissal and its discovery-related preclusion orders. With respect to the preclusion orders, the People argued that the Court acted outside of its authority when it: (1) granted preclusion as a discovery sanction without a showing of prejudice to the defendant, and (2) delegated the choice of a sanction to the defendant. The People further argued that the Court acted outside of its authority when it conducted the criminal trial in the People's absence and issued a non-appealable order under CPL §290.10 where no proof was submitted by the People.

The Appellate Division issued its decision on November 30, 2023. The Appellate Division dismissed the petition to the extent the People sought to vacate the Court's order of preclusion on the basis that the Court did not find that defendant sustained prejudice noting that "prohibition will not lie as a means of seeking collateral review of mere trial errors of substantive law or procedure, however egregious the error may be" (Clegg v Rounds, 222 AD3d 112, 118 [3d Dept 2023]). However, the Appellate Division agreed that the trial court acted outside of its authority in holding the trial in the People's absence and that the trial court could not delegate its judicial decision-making to the defendant with respect to the choice of sanctions for discovery violations relating to expert disclosure. The Appellate Division stated that it was "express[ing] no opinion as to whether a sanction should have been imposed and, if so, the nature of that sanction" and that its holding was "limited to prohibiting [the trial court] from delegating the choice of a sanction, if warranted, to a party in the underlying criminal proceeding" (id. at fn. 4). Thus, the Appellate Division granted the People's petition prohibiting the trial court from enforcing the order dismissing the indictment and from enforcing that part of the April 26, 2022, order that delegated the choice of sanction to the defendant. The matter was then returned to this Court for further proceedings consistent with the Appellate Division's [*7]decision.^[FN11]

A conference was held before this Court on December 8, 2023, at which, among other things, the People moved to unseal Superseding Indictment 70740-23. Over defendant's objection, the indictment was unsealed, and defendant was arraigned thereupon. The UCDA provided all discovery to the defense on the new indictment on a 1 terabyte disc drive, which included transcripts of Callin Lemon's murder trial. The UCDA also filed a certificate of compliance with a list of witnesses.^[FN12] At a further conference held on February 2, 2024, this Court issued a briefing schedule for the filing of motions. Defendant was granted two extensions to file motions by the Court. This Court heard oral argument on the motions on May 16, 2024. The motions are now fully submitted. The Court notes that defendant was released from jail in April of 2022 after the charges were dismissed and has remained at liberty in the community during the pendency of this case.

On remand, defendant has filed two motions with the Court. In the first motion, defendant seeks dismissal of both indictments with prejudice based upon the People's alleged gross misconduct. Defendant argues that the actions of the People and the Kingston Police Department in investigating and prosecuting this case would deprive him of a fair trial and warrants dismissal of the case. Defendant contends that the People's refusal to appear at trial and the People's "flouting" of the Court's scheduling order warrants sanctions. Defendant further argues that the People and law enforcement engaged in gross misconduct that warrants dismissal of all indictments in the interest of justice pursuant to CPL §210.40(1)(e). Defendant points to numerous alleged actions by the People and/or law enforcement to support his claim for dismissal, including but not limited to: defendant's interrogation by police officers after he had invoked his right to counsel, which was captured on body-worn camera footage; the withholding of the body-worn camera footage and misrepresentations about its existence; forcing defendant to obtain medical attention in order to secure a discarded bandage; obtaining defendant's medical records in violation of HIPAA; misrepresentations by the People as to the production of records from the New York State Police; the People's alleged discovery and Brady violations; the People's failure to request an adjournment of the trial until the day of; the People's disclosure of hundreds of videos ten days before trial; the People's communications with the media discussing precluded and suppressed evidence; the People's violations of a sealing order; and the People's procurement of a superseding indictment using precluded and/or suppressed evidence that was subject to a sealing order without first obtaining court authority to do so. Should this Court decline to dismiss the indictments in the interest of justice based upon the alleged misconduct, defendant requests that the Court preclude the People from introducing any evidence at trial that was referenced to the media in violation of the sealing order and the Rules of Professional Conduct. Moreover, defendant moves to have this Court rule on the outstanding sanction from the April 26, 2022, Order regarding the People's use of expert witness testimony. Defendant asserts that the appropriate sanction to be imposed for the People's discovery violations with respect to expert witness disclosure is preclusion of any expert witnesses not properly noticed.

In response,^[FN13] the People first request that this Court exercise its discretion to correct alleged errors of law committed by the trial court and to reconsider the trial court's denial of its request for a Rodriguez hearing, and to reconsider the trial court's imposition of sanctions for various alleged discovery violations without first having made a finding of prejudice. The People further contend that gross misconduct has not occurred in this case. To the contrary, the People argue that the prosecutor was not ordered by the trial court to proceed with trial, and that the prosecutor could not proceed due to legally insufficient evidence based upon the trial court's preclusion orders. The People further argue that all discovery materials had been provided at least 10 days prior to trial, if not much sooner; thus, all alleged discovery violations had been cured prior to the trial. The People further argue that the defendant was not unduly prejudiced by the People's late disclosure and that preclusion of evidence would result in the People's case against defendant being legally insufficient to proceed. The People further argue that the lack of prejudice to defendant was apparent when defendant declared that he was ready to proceed immediately to trial, despite having received discovery 10 days before trial. The People also contend that contrary to defendant's assertions, he was in possession of laboratory reports and the names, work affiliations of the analysts/experts who prepared the reports, and their forensic expert conclusions in or about May 2021—well in advance of the trial. Thus, the People assert that preclusion of expert witness testimony is not warranted, nor should the case be dismissed in the interest of justice.

In the second motion, defendant seeks dismissal of the Superseding Indictment on various grounds. Defendant argues that pursuant to CPL §40.30(3), following the Appellate Division's nullification of the trial dismissal, the People may only proceed on the same accusatory instrument, and therefore, the Superseding Indictment is a nullity. Defendant next argues that the Superseding Indictment is a legal nullity pursuant to CPL §§200.80, 210.20, and 210.25, because a superseding indictment may not be obtained after commencement of a trial. Defendant also argues that the Superseding Indictment must be dismissed because it was obtained without authorization from the Court and because the People failed to timely file the indictment with the Court. In addition, at oral argument, defendant argued that the integrity of the second grand jury proceeding, which was brought by the People to obtain the superseding indictment, was impaired because, among other things, the People presented suppressed evidence to the Grand Jury.

In response, the People argue that CPL §40.30(3) is not applicable to this case because no trial ever occurred in this case. The People also assert that dismissal of the Superseding Indictment under CPL §200.80, et al is not warranted as the Appellate Division declared the initial trial a nullity; thus, no trial had commenced which would prohibit the People from obtaining a superseding indictment. The People also argue that authorization from the Court was not required as no plea was taken, a trial had not commenced, and the grand jury voted to indict the defendant on the original indictment. The People further contend that there is no specified time in which an indictment must be reported, and that the Superseding Indictment was promptly reported after the Appellate Division issued its decision on the Article 78 proceeding nullifying the trial.

In reply to the People's opposition, defendant argues that the Appellate Division's [*8]decision limited the relief granted to the People to a new trial on the original indictment and a new determination of the sanction to be imposed for the failure to disclose experts. Defendant further argues that the Court should summarily deny any relief requested by the People in their opposition because they did not file a motion to renew or reargue and because the law of the case doctrine prohibits this Court from reconsidering prior pre-trial rulings.

The parties agree that the discovery in this case was especially voluminous and consists of thousands of digital files, including hundreds of videos, photographs, and documents. Given the significant dispute between the parties regarding the timing and content of the People's disclosure and compliance with Article 245 in this case, the Court requested that the UCDA provide all of the DEMS audit logs, as well as a discovery link with a corresponding password to the Court for its review of the discovery provided by the People to the defense. The Court has reviewed, in toto, the discovery provided by the People via DEMS, as well as the timing of distribution of said discovery by the People and its review by the defense.

DEMS allows the UCDA to share documents, video and audio files, photographs and other digital evidence with defense counsel and other authorized users, such as the Court, in criminal cases. After creating a discovery package and uploading it to the web portal, a web link can be sent to an authorized user's email address with a password granting them access to DEMS. As relevant to this case, the password remains active for thirty (30) days, during which time the user may review the discovery material and download it to their own personal computer.^[FN14] Discovery that is uploaded to DEMS without a corresponding email web link being generated is available to the user so long as their password is valid; however, unless a corresponding email link is sent, the user is not notified that new material has been uploaded and is available for review. Discovery packages are arranged in folders by the date and time they are uploaded to DEMS. All material that has been uploaded to the case file is accessible to the user whenever they login. DEMS creates an audit trail of various events including: the creation of new discovery packages; creation of an eDiscovery user with a corresponding email address; the regeneration of an eDiscovery user's password with corresponding email link; the dates and times the eDiscovery user accessed the uploaded discovery packages; and when an eDiscovery user logs onto DEMS.^[FN15]

Defendant argues that while the UCDA may have uploaded certain discovery material to DEMS, they failed to notify defendant that the new information was uploaded; and that such failure was tantamount to not producing the discovery at all.

Twenty-one (21) different digital discovery packages were uploaded to DEMS and shared with defense counsel in this case, commencing on February 3, 2021, a few weeks after defendant's arrest, and continuing through April 15, 2022, ten days prior to the scheduled trial.

The first discovery package was created by the UCDA on February 3, 2021, at 3:59 p.m., which contained three-hundred and fifty (350) digital files including an expert DNA case report, [*9]police reports, depositions, photographs, search warrants, a video interview of the defendant, evidence sheets and notes. The expert DNA case report was entitled "20HL-03820-2 SNYDER.pdf" and was authored by Forensic Scientist Jennifer Lawton, at the New York State Police crime laboratory.^[FN16] Prior to creating the discovery package, the UCDA added defense counsel, Bradford White, as an eDiscovery user. This action sent defense counsel an email link with a password to enable access at 3:56 p.m. The audit logs establish that defense counsel thereafter logged onto DEMS on February 3, 2021, at 8:42 p.m. and accessed this discovery package.

A second discovery package was created by the UCDA on February 5, 2021, at 5:17 p.m., which contained fifty-four (54) digital files consisting of photographs of the murder scene. The discovery package was first accessed by defense counsel on February 9, 2021, at 8:12 p.m. There is no evidence that a password was regenerated or that an email link was sent to defense counsel after the creation of this discovery package. Nonetheless, without having received such notice, defense counsel accessed this second discovery package four (4) days after it was created and uploaded to DEMS.

A third discovery package was created by the UCDA on February 10, 2021, at 3:51 p.m., which contained eighteen (18) digital files consisting of videos of an interview with Corena Kelley, an expert DNA case report, evidence sheet, forensic investigation unit reports and notes, latent fingerprint reports, and a lead on the white SUV. This discovery package was first accessed by defense counsel on February 10, 2021, at 7:59 p.m., just a few hours after it was uploaded, without defense counsel being notified via an email with a web-link. Another copy of the January 19, 2021, expert DNA case report by Forensic Scientist Jennifer Lawton entitled "DNA report 1-19-21.pdf" was included in this discovery package. This was the second time this expert DNA case report was provided to defense counsel, which was months prior to the defendant's indictment and over one year prior to trial.

A fourth discovery package was created by the UCDA on February 10, 2021, at 7:30 p.m., which contained two (2) digital files consisting of a document outlining the factual background of the investigation and a summary of the interview with the defendant. This discovery package was first accessed by defense counsel on February 10, 2021, at 8:39 p.m. Again, there is no evidence that defense counsel was notified of this new material via an email web-link; nonetheless, defense counsel accessed this fourth discovery package approximately an hour after it was created and uploaded to DEMS.

On February 11, 2021, a preliminary hearing was held in the City of Kingston before the Hon. Lawrence Ball. At the hearing, the People relied upon the January 19, 2021, expert DNA case report that matched defendant's DNA to fresh blood found on the wall of the staircase where the victim was shot and killed, and to a swab of blood taken from the white SUV. At the hearing, defense counsel asked Investigator Jan Anthony, a forensic investigator, on cross-examination if he was aware of any ballistic reports performed on any of the ballistic evidence secured at the murder scene. Investigator Anthony replied that he believed "there is a report on [*10]some ballistic evidence."^[FN17] Indeed, a ballistic report had been issued by the New York State Police Forensic Investigation Center on July 22, 2020—eleven days after the homicide. The People did not turn over this ballistics report to the defense until it was uploaded to DEMS on March 4, 2022, and thereafter accessed by the defense on March 23, 2022 (discussed further infra). The People failed in their obligation to timely provide this report to the defense after it was issued by the New York State Police Forensic Investigation Center.^[FN18]

A fifth discovery package was created by the UCDA on May 3, 2021, at 4:17 p.m., which contained twenty-one (21) digital files consisting of videos from Domino's Pizza, evidence sheets and laboratory submission, depositions, forensic investigation reports and an expert DNA case report. One of the digital files was entitled "Lab return item 304.pdf" that contained the expert DNA case report authored by Forensic Scientist Jennifer Lawton of the New York State Police Forensic Investigation Center dated March 26, 2021.^[FN19] This was a second expert DNA case report. This expert DNA case report was timely produced, and included the name, work affiliation, and expert DNA findings of the forensic scientist. A sixth discovery package was created by the UCDA on May 3, 2021, at 4:22 p.m., containing one digital file—another copy of the January 19, 2021, expert DNA case report by Forensic Scientist Jennifer Lawton. On May 3, 2021, at 4:25 p.m., defense counsel's password was regenerated, and a corresponding email was sent to him. Defense counsel did not access the March 26, 2021, expert DNA case report until April 8, 2022, at 4:23 p.m., three hundred and forty (340) days later, notwithstanding that the [*11]UCDA had sent a regeneration email with password to him eight (8) minutes after creating the discovery package. Defense counsel accessed the January 19, 2021, expert DNA case report on March 24, 2022, at 11:19 a.m., three hundred and twenty-five (325) days later. Although not accessed by defense counsel for almost one year, the Court finds that, based upon the password regeneration link sent to defense counsel, these discovery packages, including the March 26, 2021, expert DNA case report, were accessible to the defendant and provided by the People to the defense consistent with their statutory obligations. The DEMS audit logs establish that defense counsel also accessed DEMS on the following dates: May 28, 2021; January 13, 2022; and January 14, 2022, when these discovery packages were available in the DEMS case file, but he did not access them on any of those three dates. Moreover, defense counsel did not access the fifth discovery package on March 24, 2022, when he reviewed the sixth discovery package. Contrary to defendant's argument that he had not received the March 26, 2021, report until April of 2022, this expert DNA case report was provided by the People prior to indictment and over one year prior to trial.

A seventh discovery package was created by the UCDA on May 4, 2021, at 1:08 p.m. consisting of one file entitled "20ML-01249-3.pdf". This was an expert DNA case report of the New York State Police Forensic Investigation Center by Forensic Scientist Jennifer Lawton issued on January 21, 2021, which matched Callin Lemon's DNA to a plastic bag. Defense counsel's password was fully functional, when this discovery was uploaded to DEMS, but he did not access this discovery package until April 8, 2022, at 4:24 p.m., three-hundred and thirty-nine (339) days later. The DEMS audit logs establish that defense counsel accessed DEMS on the following dates: May 28, 2021; January 13, 2022; January 14, 2022; and March 24, 2022, when this discovery package was available in the DEMS case file, but he did not access it on any of those four dates.

An eighth discovery package was created by the UCDA on May 4, 2021, at 1:54 p.m. containing one hundred and ninety-six (196) digital files consisting of autopsy photographs. Defense counsel did not access this discovery package until May 28, 2021, at 1:15 p.m., twenty-four (24) days later.

A ninth discovery package was created by the UCDA on May 4, 2021, at 3:11 p.m., which contained one hundred and forty-one (141) digital files, including the autopsy report, photo record, photographs of the search of the Lemon residence, and another police narrative of the investigation. This discovery package also included a document entitled "Fact Pattern.pdf" that has the following entry:

"On July 12, 2020: Detective Reyes and Det. Gillespie did show Gould a six-pack photo array and Gould did pick out a photo that she recognized as "Rome runner." The picture she picked out was Raymond Snyder (dob:[XX/XX]/1983). Said interview was memorialized by body worn camera."

Despite having a fully functional password that had been regenerated and provided the day before, defense counsel did not access this discovery package until April 8, 2022, at 4:13 p.m., three hundred and thirty-nine (339) days later.^[FN20] The DEMS audit logs establish that defense [*12]counsel accessed DEMS on the following dates: May 28, 2021; January 13, 2022; January 14, 2022; and March 24, 2022, when this discovery package was available in the DEMS case file, but he did not access this discovery package on any of those four dates.

A tenth discovery package was created by the UCDA on May 6, 2021, at 11:37 a.m., containing two (2) digital files which consisted of two video interviews of the identification witness, Eleanor Gould. One of these digital files entitled "Gould Interview 07-12-21" is an approximately 5 ½ minute video showing Eleanor Gould being shown a series of photographs to determine if she could identify "Rome Runner" by Detective Benny Reyes.^[FN21] Defense counsel accessed this discovery package on May 28, 2021, at 1:16 p.m., twenty-two (22) days later.

The UCDA's DEMS audit logs establish that from May 3, 2021, at 4:25 p.m., when the email link and regeneration of defense counsel's password was made through May 28, 2021, the UCDA uploaded a total of six (6) discovery packages, only two of which were accessed by defense counsel on May 28, 2021, despite notice that new discovery existed on DEMS via the email regeneration link. What is clear to the Court from this review is that even when sent an email link that should have alerted defense counsel to new discovery having been uploaded to DEMS, he did not access the same until much later. Critically, one of these documents was the second expert DNA case report of March 26, 2021, which defense counsel did not access until April 8, 2022.

All of the aforesaid ten prior discovery packages were made accessible to defense counsel prior to indictment in this case and consisted of extensive items of discovery, including expert DNA case reports, written police reports, forensic investigation notes and reports, photographs, and multiple videos, including an actual video of the identification procedure utilized by police.

On May 14, 2021, the Grand Jury of Ulster County returned an indictment against the defendant. On May 17, 2021, the defendant was arraigned on the indictment. Defendant was remanded on the indictment.

On May 28, 2021, the People filed their certificate of compliance and provided an eleventh discovery package via DEMS. This discovery package was created on May 28, 2021, at 12:22 p.m., and contained approximately seven hundred and sixty-three (763) digital files, including some video files, cellphone search warrant, depositions, LPR records, maps, property receipts, victim background reports, DNA receipts, forensic investigation unit files, laboratory submissions, search warrants for the white SUV; the Lemon residence; and Lemon's clothing, and the leads generated by the investigation, including a lead log. Just prior to the creation of this discovery package on May 28, 2021, at 12:20 p.m., defense counsel's password was regenerated by the UCDA, and an email link was sent to him. This package was an extensive discovery package and provided much of the police case file relating to this investigation. Defendant's attorney first accessed this discovery package on May 28, 2021, at 1:17 p.m., approximately one hour later.

From May 28, 2021, through January 12, 2022, two hundred and twenty-nine (229) days, no discovery packages were created by the People, nor did the defendant receive any new [*13]password regeneration links. Defense counsel's password would have expired on or about June 28, 2021, thirty (30) days after it was regenerated on May 28, 2021. No evidence was submitted to the Court that the defense requested a new password link to access any of the discovery packages previously created and uploaded to DEMS during this two hundred-and-twenty-nine-day (229) period.

On January 13, 2022, at 2:41 p.m., defense counsel's password to access DEMS was regenerated and nine (9) minutes later he logged on to DEMS and accessed the digital discovery. Defense counsel also accessed DEMS and the digital discovery the next day, January 14, 2022. As of January 13, and 14, 2022, no new discovery had been uploaded to DEMS by the People. The last discovery package had been uploaded on May 28, 2021, as set forth above. Defense counsel did not access any of the following existing discovery packages on either January 13 or 14, 2022: May 3, 2021 (4:17), May 3, 2021 (4:22), May 4, 2021 (1:08) and May 4, 2021 (3:11).

A twelfth and thirteenth discovery package was created by the UCDA on February 4, 2022, at 12:26 p.m. and 2:27 p.m., respectively. The twelfth discovery package contained two (2) digital files, consisting of a copy of the indictment and a grand jury transcript.^[FN22] The thirteenth discovery package contained twenty (20) digital files consisting of various police reports, video transcripts of video reviewed by police including at 8 Maiden Lane; the Sunoco Fuel station at 675; Lynch Auto; Broadway; Budget 19; 147 Clinton Ave.; Domino's and 238 Albany Ave., and a narrative on the DNA match to the defendant. Defense counsel's password was fully functional as it had been regenerated on January 13, 2022, at 2:41 p.m. However, no new link or email was sent to defense counsel notifying him of these discovery packages. Defense counsel first accessed these discovery packages on March 24, 2022, at 9:00 a.m. and 11:15 a.m., respectively, after his password was again regenerated on March 23, 2022, at 6:24 p.m.

A fourteenth discovery package was created by the UCDA on March 4, 2022, at 5:16 p.m., which contained forty-eight (48) digital files, consisting of all of the existing laboratory reports and supporting laboratory documents. This discovery package contained what was referred to as the laboratory "Rosario" packets under the previous discovery scheme (Article 240), including the notes of the forensic scientists that analyzed the evidence; the electropherograms; photographs, chain of custody documents; proficiency records, curriculum vitaes; lab certification and other supporting documents. Defense counsel's password had expired on February 13, 2022; however, no new link or email was generated after the creation of this discovery package. Defense counsel's password was regenerated on March 23, 2022, at 6:24 p.m. He thereafter accessed this discovery package on March 24, 2022, at 9:04 a.m., the next day.

A fifteenth discovery package was created by the UCDA on March 22, 2022, at 9:20 p.m., which contained two (2) digital files consisting of the curriculum vitae of one of the People's expert laboratory analysts. Defendant's attorney first accessed this laboratory discovery package on March 24, 2022, at 9:03 a.m., two days later.

A sixteenth discovery package was created by the UCDA on March 23, 2022, at 6:21 p.m., which contained numerous digital files consisting of grand jury minutes, photographs, persons of interest files and other discovery files. On March 23, 2022, at 6:24 p.m., three minutes after creation of this discovery package, defense counsel's password was regenerated, [*14]and an email link was sent to the defense. Defendant's attorney first accessed this discovery package on March 24, 2022, at 8:51 a.m., one day later.

A seventeenth discovery package was created by the UCDA on April 14, 2022, at 4:05 p.m., which contained a digital file of a video of an interview with Callin Lemon. Defense counsel first accessed this discovery package on April 14, 2022, at 5:25 p.m. There is no evidence that defense counsel was sent notification of this new material, nonetheless, he accessed this discovery package the same day it was created and uploaded to DEMS.

Eighteenth and nineteenth discovery packages were created by the UCDA on April 15, 2022, at 12:51 p.m. and 3:40 p.m., respectively; each containing one digital file. The eighteenth discovery package contained the grand jury testimony. Defense counsel had previously been provided with all the Grand Jury testimony as provided in the sixteenth discovery package uploaded on March 23, 2022, and accessed by counsel that same day. The nineteenth discovery package contained a supplemental report and photographs of defendant's hand that were taken on March 24, 2022, pursuant to the trial court's order dated March 22, 2022. Defense counsel accessed both files on April 15, 2022, at 4:31pm. There is no evidence that defense counsel was sent an email link notifying him of these new discovery materials in the DEMS case file, but, nonetheless, defense counsel accessed this discovery package the same day it was created and uploaded to DEMS.

A twentieth discovery package was created by the UCDA on April 15, 2022, at 3:51 p.m., which contained multiple digital files consisting of further laboratory discovery including a new expert DNA case report dated March 29, 2022, that compared the defendant's buccal swab to the evidence samples, Items 106 and 304 and Item 201. The DNA on these evidence items matched the defendant. The probability of selecting an unrelated individual that matches the evidence Items 106 and 304 and the major contributor in Item 201 is less than 1 in 320 billion. The comparison of the three evidence Items 106, 304 and 201, was a reaffirmation of the matches to the defendant using the buccal swab, authorized by the Court, and was wholly consistent with the prior disclosed laboratory reports dated January 19, 2021, and March 26, 2021, that matched DNA from the bandage taken from the defendant, which had been suppressed by the Court (Item 11A). The DNA expert was the exact same person who authored the prior DNA case reports, Forensic Scientist Jennifer Lawton. There was no "new" DNA information reported in the March 29, 2022, laboratory report and the same was necessitated by the Court's suppression of the bandage secured from the defendant (Item 11A). The People promptly and appropriately provided this expert DNA case report, including laboratory Rosario, to the defense seventeen (17) days after the authoring of the expert DNA case report. Defense counsel first accessed this discovery package on April 15, 2022, at 4:19 p.m. and would have anticipated this report as a result of suppression of the bandage. There is no evidence an email link was sent to defense counsel indicating that there was new material in the DEMS case file, but, nonetheless, defense counsel accessed this discovery package the same day it was created and uploaded to DEMS.

A twenty-first discovery package was created by the UCDA on April 15, 2022, at 4:10 p.m., which contained hundreds of surveillance video clips, as well as videos of body worn camera of Detective Grothkopp and Officer Schatzel.^[FN23] These body worn camera videos should [*15]have been turned over prior to the pre-trial hearings to determine the admissibility of defendant's statements and to establish that the defendant had invoked his indelible right to counsel. While the People violated their discovery obligations to timely produce this body worn camera footage, there was no prejudice to the defense. In fact, defendant successfully used this disclosed video footage to suppress certain of his statements and the bandage secured by police at the time of his interview. A review of the videos contained in this discovery package establishes that the Mobile Life videos had previously been provided by the People in their May 28, 2021, discovery package. Furthermore, many of the videos disclosed in this discovery package were referenced, in written material, including the lead log and police investigatory notes, in the discovery package disclosed on May 28, 2021, and in the narratives and video transcripts of police officers who reviewed much of this video footage, which was contained in the People's discovery package of February 4, 2022, (2:27p.m.). Having reviewed the lead log and the investigatory notes disclosed in May of 2021, the existence of these videos should not have come as a surprise to the defendant.

In its review, the Court found sixteen (16) instances where new discovery packages were added to DEMS by the UCDA without a corresponding email link being sent to the defense. Of those sixteen (16) instances: 1) seven (7) of those discovery packages were accessed the very same day they were uploaded to DEMS, one within seven (7) minutes of its upload by the People; and 2) in fourteen (14) of the sixteen (16) instances, defense counsel's password was fully functional and, had he logged into DEMS, he could have reviewed all of the discovery uploaded prior to his login. Only two (2) discovery packages were uploaded to DEMS when defense counsel's password was expired, preventing him, in whole, from accessing DEMS at that time, with one of the two discovery uploads being cured the very next day when a password regeneration link was emailed to defense counsel. From May 3, 2021, through May 6, 2021, the UCDA uploaded six (6) discovery packages. Defense counsel was provided an email link on May 3, 2021. Of these six (6) discovery packages, defense counsel did not access four (4) of them until over nine (9) months later. The other two (2) discovery packages in the May group waited on DEMS for over twenty-two (22) days for defense counsel to access them. Defendant's argument that failure to provide the defense with notice that a discovery package was upload to DEMS and therefore is tantamount to non-disclosure is, for the most part, inconsistent with his access of the discovery in DEMS. In many cases, without a new password link, as defense argued was necessary, defense counsel accessed uploaded discovery immediately; in other cases, when sent an email link, the discovery remained un-accessed for weeks, and in some cases remained un-accessed for close to a year.

710.30 Notice and Rodriguez Hearing

As an initial matter, contrary to defendant's assertions, the Appellate Division did not dismiss that part of the People's Article 78 petition which sought to vacate the Court's April 26, 2022, preclusion order on the merits. Instead, the Appellate Division held that a writ of prohibition was not an appropriate mechanism to challenge trial court errors of substantive law or procedure (Clegg v Rounds, 222 AD3d at 118).

The Court of Appeals has found with respect to Article 78 proceedings instituted against a judge:

[the] extraordinary remedy * * * of prohibition * * * lies only where there is a clear legal right, and * * * only when a court (if a court is involved) acts or threatens to act without jurisdiction in a matter over which it has no power over the subject matter or where it exceeds its authorized powers in a proceeding over which it has jurisdiction. The writ does not lie as a means of seeking a collateral review of an error of law, no matter how egregious that error might be, in a pending criminal proceeding, but only where the very jurisdiction and power of the court are in issue. Further, in order for prohibition to be appropriate, the writ must be directed to some inferior judicial tribunal or officer and must seek to prevent or control judicial or quasi-judicial action only (Steingut v Gold, 42 NY2d 311, 315 [1977] [internal quotations and citations omitted]).

This Court is not precluded from revisiting prior evidentiary rulings, since in a criminal case, "a trial court's inherent power to correct its own mistakes includes the power to grant leave to reargue, where appropriate" (People v Baptiste, 70 Misc 3d 706, 708 [Crim Ct 2020]; see also People v Trump, 2024 NY Slip Op 50466(U), *1 [Sup Ct Feb. 23, 2024]; see generally People v Francis, 132 AD3d 893 [2d Dept 2015]). However, leave to reargue should only be granted "upon a showing that the court overlooked or misapprehended the relevant facts or misapplied any controlling principal of law" (People v Baptiste, 70 Misc 3d at 708; see also People v Trump, 2024 NY Slip Op 50466(U), *1). The right to reargument "is not designed to permit an unsuccessful party to argue once again the issues previously decided" (People v Jean Baptiste, 70 Misc 3d at 708; see also People v Trump, 2024 NY Slip Op 50466(U), *1). Whether to grant a motion to reargue is addressed to the trial court's discretion (see People v Sanad, 47 Misc 3d 783, 786 [Crim Ct 2015]).

Furthermore, law of the case doctrine is inapplicable, as this is an evidentiary ruling regarding preclusion of certain evidence. No hearing involving a mixed question of fact and law was conducted in the prior proceedings. No witnesses were called, and no credibility determinations were previously made. Law of the case does not limit the power of the court, is necessarily "amorphous" in that it "directs a court's discretion" but does not restrict its authority (see People v Evans, 94 NY2d 499, 503 [2000] [citations omitted]).

Here, the Court deems the People's opposition to include a request for leave to reargue the trial court's denial of a Rodriguez hearing with respect to Ms. Gould's testimony (see People v Baptiste, 70 Misc 3d at 708).^[FN24] The People also requested that the Court consider its response papers as a motion to reargue at oral argument. The Court is exercising its inherent power and its discretion to correct errors of law and is granting the People's request for reargument and reconsideration since the trial court's decision was rendered without full knowledge of the extent of disclosure by the People in this case, and as such, the trial court misapprehended the relevant facts relating to the defendant's actual notice of the identification procedure conducted by police officers with Ms. Gould, which had been previously provided by the People to the defense (see People v Cole, 162 AD3d 1219 [3d Dept 2018], leave denied, 32 NY3d 1002 [2018] [motion to reargue may be based upon matters of law allegedly misapprehended in determining the prior [*16]motion, citing CPLR 2221]); People v Bigwarfe, 128 AD3d 1170, 1171 [3d Dept 2015]).

With respect to the Rodriguez issue, the People explicitly relied upon Ms. Gould's grand jury testimony as their proffer of evidence, which this Court agrees was inadequate to establish a confirmatory identification. Thus, the People's request for a Rodriquez hearing is denied.

However, after an exhaustive review of the discovery provided by the UCDA to defense counsel as part of this Court's sanction review, as well as a review of the Rodriquez issue, this Court has determined that defendant had actual notice of the police arranged identification procedure made by Ms. Gould; and therefore, preclusion is unwarranted. Defendant's actual notice was unknown to the trial court prior to rendering its decision on this issue and was not argued by either side—the Court, however, cannot disregard the clear evidence as established by a review of the DEMS audit logs that defendant had actual knowledge of the identification procedure utilized in this case.

This is not a constitutional issue as a defendant has no constitutional right to notice that the prosecutor intends to call a witness who will identify, or has previous identified, the defendant upon some occasion relevant to the case (see Gray v Netherland, 518 US 152 [1996] [holding that there is no due process right to discovery or notice of identification evidence]; see also Brown v Harris, 666 F2d 782, 785 [2d Cir. 1981], cert denied, 456 US 948 [1982]). In New York, the right to notice is statutorily created (see CPL Article 710). The purpose of the notice requirement is to protect a defendant by providing a pretrial ruling at a Wade hearing on the admissibility of identification evidence (see People v Laing, 79 NY2d 166, 170 [1992]; People v O'Doherty, 70 NY2d 479, 488 [1987]). The notice requirement eliminates surprise, gives the defendant an opportunity to question witnesses while their memories are fresh, and allows both the defense and the prosecution an opportunity to formulate their trial strategy (see People v Burts, 78 NY2d 20, 24 [1991]). "Notice also provides orderliness and speed to pretrial motion practice" (see People v Laing, 79 NY2d at 170; People v O'Doherty, 70 NY2d at 488). The Court of Appeals has stated, however, that emphasis on the literal language of CPL §710.30 should be avoided when that emphasis "would produce results plainly at odds with the policy of the legislation as a whole" (People v White, 73 NY2d 468, fn. 1 [1989]).

On May 6, 2021, at 11:37 a.m., the UCDA provided two videos of interviews with Ms. Gould, one of which was a videotape of the actual identification procedure conducted on July 12, 2020. Defense counsel first reviewed this video footage on May 28, 2021, at 1:16 p.m., just eleven (11) days after defendant's arraignment. The digital file entitled "Gould Interview 07-12-20" is a video showing Ms. Gould being shown a series of photographs to determine if she could identify "Rome Runner" by Det. Reyes and she immediately identifies the defendant as "Rome Runner." This video was provided to the defense prior to indictment and is the best evidence of the identification procedure. In addition, on May 4, 2021, at 3:11 p.m., the People disclosed an additional fact pattern detailing the police arranged identification procedure which also indicated that it had been captured by body worn camera. Defense counsel did not review this additional discovery material until April 8, 2022. As such, the defendant was on actual notice of the police arranged identification procedure. The purpose of the notice requirement under CPL §710.30 is to ensure that defendant has notice of a police arranged identification procedure in order to permit defendant to challenge the admissibility of this evidence prior to trial. In this case, defendant not only knew that there was a police arranged identification procedure, but the People had produced a video of the entire procedure providing actual notice of same, thereby satisfying the CPL §710.30 notice requirement (see People v DelValle, 234 AD2d 634, 635 [3d Dept 1996]; see also People v Michel, 56 NY2d 1014 [1982]).

At the time defendant filed his omnibus motion on March 2, 2022, the two assistant district attorneys ("ADA") that had been handling the case had resigned. Chief ADA Nneji,^[FN25] who took over the case in January 2022, was, apparently, unaware of the full extent of the disclosure that had been made in the case by the prior prosecutors. In his motion, defendant claimed that "no notice had ever been filed" with him or his attorney, rather, he claimed that on February 7, 2022, at 5:00 pm, the People had emailed defense counsel documents and six (6) photographs indicating an identification procedure was utilized. While this is technically true, it is not all that the defense had knowledge of prior to the hearing and prior to the filing of the motion. The six (6) photographs may have been belatedly produced prior to the February 7, 2022, pre-trial hearing, but the video of the actual identification procedure and the police narrative of the same were not—they had been provided to defense counsel prior to defendant's indictment in May of 2021. Not only had defense counsel reviewed the video footage prior to filing the omnibus motion, but on April 8, 2022, after the motion had been filed, defense counsel reviewed the police narrative. Yet, at no time did defense counsel advise the trial court that he had received and reviewed the video footage and police narrative of the actual identification, nor that he had received the actual identification procedure on video some nine (9) months earlier. The defendant was not first put on notice of an identification procedure at 5:00 p.m., on February 7, 2022, as the trial court was led to believe at the pre-trial hearing. Defense counsel's omissions of these relevant facts are not equivalent to zealous representation of his client but demonstrate intentional and calculated gamesmanship that ultimately led to the trial court issuing an unwarranted order of preclusion, which was unsupported by the facts.

"It is undeniable that, under the peculiar facts of this case, the defense attorney had notice of the identification. Notice is the knowledge of the existence of a fact. One may not disclaim notice when he has actual knowledge of the fact. As counsel had actual knowledge of the identification, he may not claim ignorance of said fact." (People v Maldonado, 144 Misc 2d 338, 339 [Sup Ct, Bronx County 1989]). As such, because the Court finds that the People provided actual notice of the identification procedure, preclusion of identification testimony by Ms. Gould is unwarranted. Accordingly, the April 18, 2022, and the April 26, 2022, Decisions and Orders are vacated to the extent they preclude the testimony of Ms. Gould, and a Wade hearing is scheduled for July 19, 2024, at 1:30 p.m.

CPL §210.40—Exceptionally Serious Misconduct

Defendant moves for dismissal of both indictments in the furtherance of justice, pursuant to CPL §210.40(e), based upon alleged misconduct on the part of the People and law enforcement.^[FN26] The People argue that dismissal is not warranted under the facts and circumstances of this case.^[FN27]

An indictment should only be dismissed in the interest of justice where there is "some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant ... would constitute or result in injustice" (People v Banks, 100 AD3d 1190, 1191 [3d Dept 2012], citing CPL §210.40[1]). "When pressed with a motion to dismiss in the furtherance of justice, a court must examine and consider the various factors delineated in CPL 210.40 in an individual and collective fashion" (People v Snowden, 160 AD3d 1054, 1055 [3d Dept 2018], citing People v Jenkins, 11 NY3d 282, 287 [2008]). "A court's discretionary power to dismiss an indictment pursuant to CPL 210.40 should be exercised sparingly" (People v Snowden, 160 AD3d at 1055 [internal quotation marks and citation omitted]).

Here, the interests of justice do not warrant discretionary dismissal of the indictment or the superseding indictment. The defendant, who has a history of criminal convictions, including two felonies, one of which was a violent robbery with a weapon, is charged with one of the most serious crimes defined in our law, Murder in the Second Degree, as well as a burglary, stemming from his alleged involvement in the shooting death of Romero Underwood in his own home. The charges allege the most serious act of violence and harm that one human being can perpetrate against another. The evidence of guilt, whether admissible at trial or not, tends to establish that defendant spoke with Ms. Gould inquiring as to the whereabouts of the victim and whether he was in possession of drugs just minutes before the victim was shot in the back and killed. Ms. Gould advised the defendant that the victim lived on the same block as the defendant, and that the victim was in possession of high-quality crack cocaine. Approximately five minutes after this phone call, the victim was shot and killed. Fresh blood at the scene of the murder matched the defendant. Defendant's blood was found on a white SUV which was at the murder scene and fled shortly after the murder, as well as in the house where the alleged murder weapon was found. The caliber of the guns located in the house where defendant's blood was found matched ballistics evidence found at the murder scene. Furthermore, DNA analysis of the 9-mm handgun matched both the defendant and the victim. Moreover, defendant had a substantial injury to his right hand shortly after the murder which caused bleeding. The evidence of guilt here is compelling. The victim's family has expressed their concerns about being denied a fair trial and being denied justice in this case. Any improper conduct engaged in by law enforcement in its investigation, arrest and prosecution of this case was remedied by the orders precluding the video of defendant's interview, the bandage from defendant's hand and any forensic data related to same, as well as the defendant's medical records. The dismissal of this case would erode the community's confidence in the criminal justice system and severely impact the safety and welfare of the community, particularly considering the gun violence and drug related crimes the City of Kingston has endured. Moreover, the People's failure to appear and proceed to trial does not warrant dismissal of the case. The preclusion orders issued by the trial court placed the People in a catch-22—they were unable to proceed with the case because the orders rendered the case legally insufficient, but if they proceeded with the case, defendant would surely have been acquitted and double jeopardy would have attached with no remedy to appeal the trial court's discovery orders.

A dismissal in the interest of justice here would be a significant perversion of justice. A man was brutally murdered in the doorway of his own home — a place he should have been safe. He was shot in the back by two male assailants. The forensic evidence here points to the defendant. There is no compelling factor or circumstance that demonstrates "that conviction or prosecution of the defendant ... would constitute or result in injustice" (People v Banks, 100 [*17]AD3d at 1191, citing CPL §210.40[1]).

Furthermore, the Court finds that neither the police nor the People engaged in any egregious or bad faith conduct which would warrant a dismissal. The failure to timely provide all of the discovery in this case shows a lack of diligence by the prior prosecutors assigned to this case and was, in part, a product of a District Attorney's Office that was in disarray as multiple prosecutors had resigned. However, when Chief ADA Nneji was assigned, he endeavored to quickly and diligently deliver any discovery that had not been previously disclosed.

While there were acknowledged discovery delays in this case, none of them resulted in any prejudice to the defendant such that he could not be given a fair trial. Defendant has now been in possession of all discovery in this case for more than two years. Accordingly, a jury should decide this murder case. Furthermore, while suppression of the defendant's statement was required, there was absolutely no evidence that the statement was coerced or made under threat or was traditionally involuntary and the statement is available for impeachment purposes. There is simply no evidence of misconduct that rises to the level of warranting dismissal of this murder case. The Court has considered the balance of the defendant's claims for dismissal and finds them without merit. Dismissal in the interest of justice is denied.

CPL §245.80—Sanctions—Expert Witness Disclosure

On remand, defendant argues that the Court should preclude the People from presenting expert witness testimony as a sanction for failing to provide expert witness disclosure pursuant to CPL §245.20. The People argue that there has been no showing of prejudice to the defendant for the late disclosure and that any purported prejudice suffered by the defendant could be remedied with a lesser sanction.

As an initial matter, the Court rejects defendant's argument that the election of remedies decretal paragraph in the April 26, 2022, order was meant to preclude "any other expert witness disclosure" the People might offer; and, further, rejects the defendant's argument that the election of remedies was not directed at expert witness disclosure relative to DNA, ballistics and serology. It is clear from the trial court's decision that the choice of three remedies was referencing expert witness testimony with respect to the scientific expert opinions relative to the fields of DNA, ballistics, and serology as these are the relevant fields of expert testimony at issue in this case. Accordingly, as a result of the Appellate Division's order of November 30, 2023, this Court must now choose the appropriate remedy for the alleged discovery violations concerning expert witness testimony relating to DNA, ballistics and serology.

"It is well settled . . . that there is no general constitutional right to discovery in criminal cases" (Miller v Schwartz, 72 NY2d 869, 870 [1988]; see also Wardius v Oregon, 412 US 470, 474 [1973] ["the due process clause has little to say regarding the amount of discovery which the parties must be afforded"]). In New York, discovery is governed by statute and the statute provides for "open file" discovery (see generally CPL Article 245, et seq.). Pursuant to CPL §245.20, prosecutors are required to disclose "all items and information that relate to the subject matter of the case and are in the possession, custody or control of the prosecution or persons under the prosecution's direction and control." The statute further provides a non-exhaustive list of materials subject to disclosure under this provision (see CPL § 245.20[1].) CPL § 245.10 sets forth a timeline for these disclosures, requiring the People to comply with this automatic discovery obligation within a certain time period, except in cases with "exceptionally voluminous" discovery materials, where initial automatic discovery may be stayed for an additional thirty days without the need for a motion (see People v Sellie, 77 Misc 3d 1234(A) [*18][NY Co Ct 2023]). Disclosure of expert opinion evidence must be made as soon as practicable but not later than 60 calendar days before the first scheduled trial date unless an order is obtained pursuant to § 245.70 (see CPL § 245.20(1)(f); People v Sellie, 77 Misc 3d 1234(A)).

Article 245 also provides that "[w]hen material or information is discoverable under this article but is disclosed belatedly, the court shall impose a remedy or sanction that is appropriate and proportionate to the prejudice suffered by the party entitled to disclosure. Regardless of a showing of prejudice the party entitled to disclosure shall be given reasonable time to prepare and respond to the new material" (CPL 245.80[1][a]) (emphasis added) (as amended and effective April 9, 2022).^[FN28] "For failure to comply with any discovery order imposed or issued pursuant to this article, the court may . . . . preclude or strike a witness's testimony or a portion of a witness's testimony, admit or exclude evidence, . . . . or make such other order as it deems just under the circumstances" (CPL 245.80[2] [emphasis added]). The automatic discovery statute was never intended by the Legislature to encourage gamesmanship by defendants seeking to create "an inescapable trap for the diligent prosecutor who professionally, assiduously and in good faith attempts to comply with their new procedures. Instead, the rules seek not to punish unintentional or harmless non-compliance, but to ensure that defendants get a fair trial" (People v Godfred, 77 Misc 3d 1119, 1124 [Crim Ct 2022]).

In a similar murder case where an expert ballistic report was allegedly belatedly disclosed during the trial, the Court of Appeals found that the trial court did not abuse its discretion in "denying defendant's motion for preclusion of evidence contained in [the] ballistics report" (People v Jenkins, 98 NY2d 280, 281 [2002]). While the People disputed the defendant's claim that the expert ballistics report had not been provided, "without determining whether the report had been disclosed, the trial court offered to adjourn the case to allow the defense to review the evidence and retain an independent ballistics expert. Defense counsel declined the offer. . . . The court found that even if the prosecutor failed to timely disclose the report, defendant had not been prejudiced by the late disclosure" (Id. at 283). The appellate division affirmed and held that "even if the People had untimely disclosed the ballistics report during the trial, there was no showing of prejudice or bad faith to justify precluding the prosecution from presenting the evidence contained in the ballistics report" (Id.). In its holding, the Court of Appeals stated:

[p]reclusion of evidence is a severe sanction, not to be employed unless any potential prejudice arising from the failure to disclose cannot be cured by a lesser sanction. [T]he overriding concern must be to eliminate any prejudice to the defendant while protecting the interests of society" (id. at 284 [internal quotation marks and citation omitted]).

In People v Thomas, 12 AD3d 383 [2d Dept 2004], in violation of their discovery [*19]obligations, the People failed to turn over a recorded 911 telephone call until days before the trial. The defense moved for preclusion. The trial court denied preclusion and the appellate division affirmed the trial court's denial of preclusion holding: "[t]he extreme sanction of preclusion of evidence is warranted only where undue prejudice will result from the failure to timely produce such evidence" (Id. at 384). Since the defense had a "meaningful opportunity" to prepare from cross-examination of the witnesses who made the 911 call the appellate court found no prejudice and no deprivation of a fair trial (Id.).

"Preclusion or dismissal is only an appropriate sanction for discovery violations where a constitutionally protected right is implicated (People v Godfred, 77 Misc 3d at 1125). And, "even in cases where evidence is not disclosed until after trial begins, such an error will not require reversal as long as the defense was afforded a meaningful opportunity to use it to cross-examine the People's witnesses or as evidence-in-chief" (People v Decker, 218 AD3d 1026 [3d Dept 2023], lv denied, 40 NY3d 1012 [2023] [internal quotation marks and citation omitted]).

Here, the People did not completely meet all of their discovery obligations and certain discovery items should have been provided to the defense sooner. All discovery, however, was provided prior to the commencement of the trial. However, the Court finds that the defense considerably overstated the failures of the People to adequately and timely provide discovery, including as it relates to expert witness disclosure. To underscore, the disclosure violation alleged by defendant here is the People's failure to provide a formal listing of the DNA, ballistics and serology expert witnesses the People intend to call at trial. While the People did not formally list the names of the experts as contemplated by the statute, the People provided the functional equivalent. To find otherwise would exalt form over substance as the record clearly establishes that the defendant had the names, work affiliations, and forensic expert conclusions of the People's intended expert witnesses months prior to trial as that information was set forth in the expert DNA and serology reports provided by the People to the defense. In addition to this expert information, with respect to the expert DNA case reports, defendant was aware of the following information, as set forth in the laboratory reports:1) presumptive tests for blood were conducted on multiple pieces of evidence; 2) DNA extraction procedures were performed on items of evidence; 3) STR DNA analyses were conducted on items of evidence; 4) PCR (Polymerase Chain Reaction) analyses using a Globalfiler amplification kit were conducted on items of evidence; and 5) CMP (conditional match probabilities) were calculated from databases provided by the Federal Bureau of Investigation.

On February 8, 2022, defense counsel advised the trial court that he had not received the laboratory Rosario material. The trial court then ordered the People to disclose this material by February 12, 2022. The record indicates that the People uploaded all laboratory discovery relating to expert testimony in DNA, ballistics, and serology on March 4, 2022, prior to the scheduled trial date of April 25, 2022. The curriculum vitaes of the People's experts were uploaded on March 4, 2022, and March 22, 2022. However, because no new link or email was regenerated by the UCDA, defendant did not have access to the material until March 23, 2022, at 6:24 p.m. This was thirty-three (33) days prior to trial and twenty-seven (27) days late, as the CPL provides all expert disclosure must be made no later than 60 days prior to the scheduled trial date (see CPL §245.20[1][f]; People v Sellie, 77 Misc 3d 1234(A), at *8). Nevertheless, the defendant was in possession of two of the expert DNA case reports well in advance of the trial. The expert DNA case report of January 19, 2021, that matched defendant's DNA to a blood stain on a wall of the hallway where the victim was shot (Item 106); that matched defendant's DNA to a blood stain found on the white SUV (Item 201); and that matched the victim's DNA to the slide [*20]of the 9mm handgun (Item 308) seized from the Lemon residence was first provided to the defense on February 3, 2021 — fifteen (15) days after it was issued. The expert DNA case report of March 26, 2021, that matched defendant's DNA to blood found at Lemon's residence (Item 304), where the two handguns were found, was first provided to the defense on May 3, 2021. Notably, both the January 19, 2021, and March 26, 2021, DNA case reports were authored by the same individual, Forensic Scientist Jennifer Lawton. Additionally, the Court rejects defendant's argument that he only received "summary reports." The expert DNA case reports provided were detailed and contained the expert's scientific opinion to be rendered at trial with statistics and conditional match probabilities, including the scientific methods and examinations conducted and the databases utilized. Thus, the defense had the January 21, 2021, expert DNA report for over 14 months prior to trial and had the March 26, 2021, expert DNA report for over 12 months prior to trial. Contrary to defendant's claims, these reports were provided by the People prior to indictment. The fact that defense counsel did not access the March 26, 2021, report until April of 2022, is not the fault of the People.

The same analysis applies to the ballistics report that was belatedly disclosed on March 4, 2022, and made available to defendant on March 23, 2022. While defendant did not receive the expert ballistics report until thirty-three (33) days prior to trial, he certainly knew of its existence as early as February 11, 2021, when defense counsel cross-examined the forensic investigator at the preliminary hearing confirming the report's existence. Defendant also had actual notice, prior to indictment, of the seizure of two firearms made pursuant to a search warrant, and that two projectiles (bullets) and a casing had been recovered from the murder scene, as the search warrant, forensic investigation report and photographs had all been provided to the defense. The defense also knew, from a review of the January 19, 2021, expert DNA case report that the victim's DNA was matched to the slide of the 9mm handgun seized from Lemon's residence, the same place defendant's blood was found. Additionally, there is no evidence in the record that defendant alerted the People to the deficiency in providing the ballistics report despite the trial court's directive on February 8, 2022, that the parties confer to resolve their discovery dispute.^[FN29]

Furthermore, defendant has demonstrated absolutely no prejudice based upon the People's failure to provide a formal list of their expert witnesses nor the People's delay in providing the Rosario material herein. None of the belated expert discovery material was in any way exculpatory; instead, it was evidence that supported the People's case against the defendant. Additionally, the purpose of expert witness disclosure is to ensure that the opposing party is not taken by surprise. There were absolutely no surprises here. The DNA matches and existence of ballistics evidence were well known to the parties prior to indictment. Defendant has never requested independent expert analysis of the DNA, ballistics and serology evidence. On March 23, 2022, defendant was provided with all expert DNA reports; all expert ballistic reports and all expert serology reports, including the laboratory Rosario packets for each. This was thirty-three (33) days prior to trial. Notwithstanding the fact that these items were belatedly produced, the defendant did not seek an adjournment. Instead, defendant sought an order precluding expert testimony and declared that the defense was ready to proceed to trial. The lack of prejudice here is underscored by defendant's unequivocal declaration that he was prepared to go to trial (see People v Waksal, 75 Misc 3d 129[A], 2022 NY Slip Op 50380[U] [App Term 2022]).

The extreme sanction of preclusion is not appropriate under these circumstances and would work to frustrate society's interest in ensuring justice in cases of homicide and a corresponding search for the truth (People v Jenkins, 98 NY2d at 284). No constitutional rights were implicated by the delayed discovery disclosure and at the time of the initial trial, the defense had a meaningful opportunity to review the delayed discovery and prepare for trial (see id. at 284; People v Thomas, 12 AD3d at 384). Preclusion of evidence for non-constitutional discovery violations is not a prudent exercise of discretion for the People's failure to timely provide expert witness disclosure, particularly where no prejudice has been established by the defendant and the consequence of such preclusion would result in rendering the People's case legally insufficient without any right to appeal.^[FN30] Such a result eviscerates the remedial scheme of the discovery reforms and disregards both legislative intent and history of Article 245 and controlling appellate precedent on discovery violations and the specific holding of the Court of Appeals in People v Jenkins. Moreover, when courts resort to draconian sanctions absent any demonstrated prejudice to a defendant, it is unfair not only to individual complainants but betrays the trust of the community at large. Such sanctions "undermine the stated policy of fairness to both sides and the truth-seeking purpose of the criminal justice system, resulting in the public mischief and injustice about which the Court of Appeals warned over 100 years ago" (People v Godfred, 77 Misc 3d at 1128, citing Hayden v Pierce, 144 NY 512 [1895]; cf. People v. Sidbury, 2024 NY Slip Op 03318 [2024] [abuse of discretion to prohibit psychiatric defense that was 1,400 days late]). Here, the harsh sanction of preclusion ^[FN31] would severely compromise the truth-seeking function of a trial in a case where a man was brutally shot and murdered in his own home. Moreover, as of the date of this Decision and Order, defendant has now had all discovery items for well over two years. Accordingly, since the defendant has had over two years to meaningfully prepare for the expert testimony and evidence proffered by the People to include DNA, ballistics and serology evidence, the People shall be permitted to adduce such expert testimony and evidence at the trial. The defendant has de facto been granted a sufficient remedy or sanction, to wit: an adjournment.^[FN32]

Superseding Indictment

Defendant argues that the superseding indictment is a nullity and must be dismissed on [*21]three grounds: (1) defendant can only be tried on the same accusatory instrument pursuant to CPL §40.30(3); (2) the People lacked authority to re-submit the case to the grand jury under CPL §200.80; and (3) the indictment was not timely filed pursuant to CPL §190.65. In addition, at oral argument, defendant argued that the superseding indictment was invalid because the People presented the grand jury with suppressed evidence, including the testimony of Ms. Gould and DNA from the bandage taken from the defendant. In opposition, the People argue that CPL §40.30(3) is not applicable; they were not required to obtain permission from the Court prior to submitting the superseding indictment to the grand jury under CPL §200.80; and that there is no time requirement to filing an indictment under CPL §190.65(3).

Here, the Appellate Division held that the trial court's dismissal of the indictment based upon legally insufficient evidence under CPL §290.10 was a nullity. While the Appellate Division referenced CPL §40.30(3) when discussing why defendant would not be subject to double jeopardy, the Appellate Division did not hold that defendant must be tried upon the same accusatory instrument. Where dismissal of an indictment is a nullity, the first indictment remains effective, and authorization to seek a superseding indictment is not required (see People v Dexter, 259 AD2d 952, 953 [4th Dept 1999]). Moreover, as stated by the Appellate Division, the trial court proceeded with a "charade of a trial" and the underlying proceedings were nullified; thus, no trial occurred which would prohibit the People from seeking a superseding indictment without first obtaining permission from the court under CPL §200.80. In addition, contrary to defendant's assertions, CPL §190.65 (3) is only directory, and imposes no time limits on filing; thus, its requirements were met when the voted-on indictment was filed with the Court (see People v Cade, 74 NY2d 410, 416 [1989]; see also People v Taylor, 187 Misc 2d 321, 325 [Sup Ct 2001]). Therefore, the People, properly, waited for a decision and order from the Appellate Division before reporting the superseding indictment.

However, while the People may have been authorized to obtain the superseding indictment without first seeking Court permission; the superseding indictment must nonetheless be dismissed based upon legal insufficiency. "It is well established that, during a grand jury presentation, 'not every improper comment, elicitation of inadmissible testimony, impermissible question or mere mistake renders an indictment defective. Typically, the submission of some inadmissible evidence will be deemed fatal only when the remaining evidence is insufficient to sustain the indictment'" (People v Bullock, 213 AD3d 1351, 1352 [4th Dept 2023], quoting People v Huston, 88 NY2d 400, 409 [1996]). The People submitted Ms. Gould's identification testimony and the January 19, 2021, expert DNA case report that matched defendant's DNA taken from the bandage on his hand to the DNA evidence in the case. Both items of evidence had been suppressed by the trial court. Theoretically, the People may have presumed that if they were successful in the Article 78 proceeding that Ms. Gould's testimony may not be precluded. However, the Court cannot understand why the People would use the suppressed expert DNA case report when the trial court ordered defendant to submit to a buccal swab, the DNA from the buccal swab was thereafter matched to the DNA evidence in the case, and the buccal swab and March 26, 2021, DNA case report had not been suppressed. Here, without the DNA evidence from the bandage linking defendant to the alleged crimes committed, the evidence before the Grand Jury was legally insufficient. As such, the defendant's application to dismiss the Superseding Indictment No. 70740-23 is hereby granted with leave to re-present to a new Grand Jury within thirty (30) days of this Decision and Order.

Based upon the foregoing, it is hereby

ORDERED that Defendant's motion to dismiss Indictment 70019-21, pursuant to CPL §210.40, or in the alternative to preclude expert witness testimony consistent with the Court's April 26, 2022, Decision and Order is denied; and it is further

ORDERED that Defendant's motion to dismiss Superseding Indictment 70740-23 is granted in part and denied in part; such that the Superseding Indictment is dismissed based upon legal insufficiency with leave to represent to a new Grand Jury within thirty (30) days of this Decision and Order; and it is further

ORDERED that the People's application to reargue the Court's April 18, 2022, and the April 26, 2022, Decisions and Orders precluding the identification testimony of Eleanor Gould is granted; and upon reargument, the Court's April 18, 2022, and the April 26, 2022, Decisions and Orders are vacated to the extent they preclude the identification testimony of Eleanor Gould and a Wade hearing is scheduled for July 19, 2024 at 1:30 p.m.; and it is further

ORDERED that the Court's April 22, 2022, Decision and Order precluding all video evidence disclosed by the People on April 15, 2022, as well as precluding the People from eliciting any testimony at trial with respect to the videos disclosed is vacated to the extent the video footage and/or a narrative of the content of the video footage had been disclosed by the People prior to April 15, 2022; and it is further

ORDERED that trial is scheduled to commence at 9:30 a.m. on August 26, 2024.

1. Notice of Motion seeking dismissal of the indictments pursuant to CPL §240.40 and preclusion of unnoticed experts consistent with the April 26, 2022, Order; Richland Affirmation in Support with annexed exhibits

2. Notice of Motion seeking dismissal of the superseding indictment pursuant to CPL §40.30(3); dismissal of the superseding indictment pursuant to CPL §§ 200.80, 210.20 and 220.25; and dismissal of the superseding indictment for resubmission without authorization; Richland Affirmation in Support with annexed exhibits

3. People's Response to Omnibus Motion with annexed exhibits

4. Richland Affirmation in Reply

5. DEMS audit log reports and all discovery uploaded to DEMS by the Ulster County District Attorney in this case.