In an Affirmation in Support of Defendant's Motion to Dismiss October 20, 2025, submitted by Laura Solinger, Esq., the defendant has moved, pursuant to CPL 210.20, 210.35(4), 210.35(5) and 190.50, to dismiss the indictment.

An Affirmation in Opposition to Defendant's Motion to Dismiss Indictment dated November 26, 2025, was submitted by ADA James Hamilton, who opposed the defendant's motion to dismiss.

On March 22, 2016, at about 1:15 a.m. at Clermont Street near Myrtle Avenue and Park Avenue in Kings County, a male pointed a silver-colored revolver at Michael Spruill. Mr. Spruill later learned that the defendant was this male. The defendant asked Mr. Spruill to give him his property and Mr. Spruill handed over $65, a pair of black Dre Studio headphones which costed $350 and his iPhone 6s which costed $800. Mr. Spruill then looked at the Find my iPhone app and learned that it was located at 162 Adelphi [*2]Avenue. Later, the police transported Mr. Spruill to a location, and he observed the defendant at that location. Mr. Spruill stated that Mr. Gonzalez returned his iPhone to him which now had a cracked screen and at the 88th police precinct, Mr. Spruill observed his headphones which were broken. Mr. Spruill stated that the defendant did not have permission or authority to take his property.

According to excerpts of the testimony before the Grand Jury, Larry Gonzalez also testified.^[FN2] He stated that on March 22, 2016, at about 2:20 a.m. in Kings County, he and his wife, Natacha Charles were approached by an individual who possessed a silver-colored revolver and demanded money. Mr. Gonzalez told this individual that he had no money but only had a MetroCard and a debit card. Mr. Gonzalez stated that this individual rummaged through Mr. Gonzalez' pockets and bookbag. Mr. Gonzalez stated that this individual then demanded Ms. Charles' ring which Mr. Gonzalez was wearing. Mr. Gonzalez told this individual that he would not give him the ring, so this individual raised his voice and using his left hand in which he possessed the revolver hit Mr. Gonzalez on the right side of his face. Mr. Gonzalez stated that he decided that he needed to get a hold of the revolver. Mr. Gonzalez then held onto this individual's left hand and pushed this individual against a tree. Mr. Gonzalez stated that's when the revolver dropped to the ground which Mr. Gonzalez retrieved the revolver, and the individual attacked Mr. Gonzalez who began to strike this individual with the revolver. The revolver again fell to the ground and Ms. Charles picked up the revolver.

Mr. Gonzalez stated that this individual was wearing a pair of Beats headphones which broke during the physical contact between Mr. Gonzalez and this individual. Mr. Gonzalez stated that he found an iPhone 6s on the ground which he handed to another individual.

The defendant was arraigned on a felony complaint and defense counsel served written notice pursuant to CPL 190.50. On March 31, 2016, the defendant was transported from Rikers Island to the courthouse to testify before the Grand Jury. The defendant executed a Waiver of Immunity which was provided to the prosecutor. The defendant, however, did not testify and cross grand jury was not withdrawn. The defendant was indicted on charges stemming from the two incidents. Defense counsel filed an affidavit from the defendant dated October 5, 2025, in which he recalled the events from March 31, 2016, and which he affirms that he did not advise his then attorney [*3]that he would testify only as to the second incident.^[FN3]

On April 27, 2016, defense counsel filed a motion to dismiss on the ground that the indictment was defective in that the defendant was not afforded his right to testify before the Grand Jury. According to the copy of the motion, which was submitted by defense counsel, the defendant requested that he testify only as to the second incident and remain silent as to the first incident. Also, defense counsel has submitted copies of e-mails from then defense counsel and the then assigned prosecutor from March 25, 2016, and March 31, 2016, discussing the scope of the defendant's testimony before the grand jury.

On June 21, 2016, the defendant's motion was denied. The court found that the issue raised was "defendant's contention the People effectively denied his CPL §190.50 rights by improperly joining two incidents for presentation before the same Grand Jury, and by not permitting defendant to testify concerning only the attempted robbery of Mr. Gonzalez without also being subject to cross examination concerning the robbery of Mr. Spruill." (People v Simon, Sup, Kings County, June 21, 2016, Foley,J. indictment No. 2512/16, at p 3-4) The court found that the dispute between the parties did not render the CPL 190.50 notice unreasonable or ineffectual and the affirmation from defense counsel regarding the defendant's desire to testify was "equivocal at best" in that the defendant did not submit his own affidavit. (Id. at p 7)

Subsequently, pre-trial hearings were held and the defendant's motions to suppress were denied.

On October 30, 2017, the defendant went to trial. On December 21, 2017, the defendant was convicted and sentenced to an aggregate term of 27 years in prison.

On October 10, 2022, the defendant appealed his conviction. On the appeal, counsel argued that the show-up identification held on Adelphi Street was unduly suggestive and that the trial court erred when she substituted a deliberating juror without the defendant's consent.

On December 29, 2023, the defendant filed a pro se brief that his right to testify before the Grand Jury under CPL 190.50 was violated and that he received ineffective assistance of counsel regarding him testifying before the Grand Jury. Defense counsel [*4]submitted a copy of that document.

On January 8, 2025, the appellate court reversed his conviction. (see People v Simon, 234 AD3d 720 [2025].) The court found that the show-up identification that occurred on March 22, 2016, at 162 Adelphi Avenue was unduly suggestive and should have been suppressed. The court dismissed all charges stemming from the first incident that occurred at Clermont Street near Myrtle Avenue and Park Avenue on March 22, 2016. The court also found that the trial court erred when it substituted a deliberating juror without the defendant's consent. The court remitted the remaining counts concerning the incident that occurred at 162 Adelphi Avenue for a new trial. As to any remaining contentions, the court found that either they were not needed to be reached considering their ruling or were without merit.

Defense counsel maintains that there is a "reasonable possibility" that the Grand Jury decision to indict the defendant on the attempted robbery that occurred at or near Adelphi Street was influenced by the "constitutionally obtained damning evidence that clearly linked him to the earlier robbery that never have been [sic] before them."(Defense Affirmation in Support of Defendant's Motion to Dismiss, dated October 20, 2025 at p 6)

Defense counsel concedes that no case law on point exists in this situation where the Grand Jury indicted after hearing evidence of charges later dismissed on appeal. Defense counsel, however, maintains that this scenario can be analogized where impermissible count or counts taint a jury's deliberation resulting in dismissal of those influenced charges.

Defense counsel relies upon People v Baghai-Kermani, 84 NY2d 525 (1994).^[FN4] In Baghai-Kermani, the defendant, a psychiatrist, was convicted of 10 separate counts of criminal sale of a prescription for a controlled substance. After the defendant's sentencing, defendant's newly retained attorney learned that two recorded conversations made by the New York State Bureau of Controlled Substances investigator, the witness [*5]for the prosecution as to 2 of the 10 sales, had not been disclosed.

The defendant moved to set aside his conviction, and the trial court granted the motion finding that the violation had tainted all the evidence because the prosecutor had argued that all the evidence should be considered as a whole to establish the lack of good faith by the defendant. The appellate court reinstated the defendant's conviction on the eight counts with regard to the sales which were not the subject of the investigator's testimony. The appellate court found that reversal of all the counts was not required because the tainted counts did not represent "a substantial proportion of the total evidence on a disputed issue."

The Court acknowledged that the People's failure to disclose the material to defense counsel constituted a violation of Rosario and such violation required reversal of the two convictions for selling prescriptions to that witness. The Court, however, found that the extension of this per se reversal rule to convictions on unrelated charges would be an unwarranted expansion of the rule in which it has no meaningful application.

The defendant alternatively argued that the two tainted counts may have had a "spillover" effect arising from the prosecutor's comments during summation that evidence of each sale had a "cumulative effect" to rebut any claim of mistake or coincidence.

The Court stated:

"[t]he evidence on each of the 10 counts may have had some tangential effect on the others, since, as the prosecutor argued, 'the mass [of evidence] has a cumulative value' and 'repetition [of the conduct] reduces the likelihood of mistake.' However, in view of the number of counts, the relative uniformity of the evidence pertinent to each and the strength of the independent proof bearing on defendant's culpable mental state, there was no reasonable possibility that the evidence supporting two tainted counts influenced the guilty verdicts on the other eight." (84 NY2d at 532)

In the instant matter, defense counsel relying on testimony of two witnesses who testified before the Grand Jury. According to defense counsel, Michael Spruill testified that he was robbed and his iPhone 6S and a pair of Beat headphones were taken; that hours after the robbery, Mr. Spruill identified the defendant as the person who robbed him; and that he received his iPhone from Mr. Gonzalez. According to defense counsel, Mr. Gonzalez testified that the person who attempted to rob him was wearing a pair of Beat headphones and during the altercation the person dropped an iPhone 6S which Mr. Gonzalez later returned to the owner.

Based upon this defense counsel argues that the two incidents were inextricably intertwined and therefore a "reasonable possibility" was created that the grand jurors were influenced to indict on the attempted robbery incident because they heard testimony of [*6]the earlier incident which was dismissed by the appellate court.

Defense counsel seeks dismissal of the indictment so the prosecutor can attempt to present evidence to a Grand Jury without testimony of the first robbery.

In support of his position, the prosecutor cited People v McIntosh, 167 AD2d 429 (2d Dept 1990), People v Gordon, 88 NY2d 92 (1996) and People v Swamp, 84 NY2d 725 (1995).

In McIntosh, the court reviewed the Grand Jury minutes and found that the indictment was based upon legally sufficient evidence and granted the defendant's motion to preclude his statement on the ground the prosecutor failed to provide timely notice under CPL 70.30. The court, sua sponte, reassessed the evidence presented to the Grand Jury and without considering the use of the defendant's statement, found the evidence to be legally insufficient and dismissed the indictment.

The Second Department disagreed and reinstated the indictment. The Second Department held that the "court's subsequent exclusion of the statement for purposes of the trial does not render that evidence insufficient or otherwise invalidated the indictment (citations omitted)." (Id. At 430)

In Gordon, after a Wade hearing, the court found that the identification procedure was the product of an improper, unconstitutional and unduly suggestive procedure and granted the defendant's motion to suppress. As a result, the defendant moved to dismiss the indictment on the ground that no evidence was present to connect him to the crime. The court agreed and noted that without the identification of the witness, the court was not persuaded that the evidence presented to the Grand Jury was legally sufficient to support the indictment. The appellate court reversed and reinstated the indictment.

The Court stated, "[i]f competent prima facie evidence underlying an indictment is subsequently rendered inadmissible by extrinsic proof — for example, evidence of an unduly suggestive identification procedure proffered at a Wade hearing — the legal sufficiency of the indictment is not undermined (citations omitted). Competent prima facie evidence stands sufficient until nullified, and can supply a necessary element in a prima facie case unless nullified before an indictment is secured. (citations omitted)." (Id. at 96)

In Swamp, the Court stated, "[e]vidence later proven unreliable can legally support an indictment. The standard for sufficiency is whether the evidence before the Grand Jury — if uncontradicted — would support a determination of guilt (citations omitted)." (Id. at 731)

The prosecutor, relying on the above referenced caselaw, maintains that in this case, the underlying indictment was based upon legally sufficient and competent evidence. The prosecutor notes that on appeal, the Second Department found that the identification procedure was suggestive and ordered that a new trial be conducted on the remaining counts rather than dismissal of the indictment.

In this case, the defendant was charged with robbery and other related charges stemming from two incidents that occurred on March 22, 2016, in Kings County. Pre-trial suppression hearings were conducted, and the court denied the defendant's motion to suppress evidence including the identification procedure. At the defendant's jury trial, he was convicted of robbery in the first degree and other charges.

The defendant appealed his conviction on the ground that his motion to suppress to identification evidence was erroneously denied. The Second Department agreed and found that the identification procedure, a showup, was unduly suggestive. The Second Department noted that the showup was the sole evidence that identified the defendant as the perpetrator of the first robbery and dismissed all the counts in the indictment related to that robbery.

This ruling from the appellate court is the subject of the defendant's current motion. Defense counsel argues that since the identification procedure was found infirm and counts related to the first robbery have been dismissed, the Grand Jurors were possibly impermissibly influenced to indict the defendant as to the second robbery.

Defense counsel's argument fails, and this court finds the reasoning set forth in People v Gordon to be instructive. In Gordon, the court found that the identification procedure, a showup, was unduly suggestive and as a result, the defendant moved to dismiss the indictment on the ground that without the testimony of the witness, the indictment was no longer based upon competent evidence. The court granted the motion to dismiss but the appellate court reversed and reinstated the indictment.

The Court in Gordon stated the following:^[FN5]

"We have recognized a distinction between evidence subject to a per se exclusionary rule that is never sufficient to support an indictment and evidence that [*7]is sufficient to support a prima facie case before the Grand Jury but is later proven unreliable (citations omitted). In the latter situation, we have declined to undo the work of the Grand Jury because the court's function on a motion to dismiss pursuant to CPL 210.20(1)(b) is limited to an assessment of the legal sufficiency of the evidence at the time of the indictment, not in light of subsequent developments. The relevant inquiry on a motion to dismiss an indictment pursuant to CPL 210.20(1)(b) is whether the evidence before the Grand Jury, viewed most favorably to the People, would support a determination of guilt (citations omitted). Here, [the witness'] positive identification of defendant, together with the arresting officer's testimony, as presented to the Grand Jury, satisfied this threshold standard (citations omitted). To hold otherwise would convert the reviewing court's function into a summary judgment evaluation of the quality and quantum of the People's evidence, a function reserved to the petit jury." (Id. at 96)

Guided by the reasoning as mentioned above, the defendant's motion to dismiss the indictment on the ground that the Grand Jury were possibly improperly influenced to indict the defendant as to the second robbery after hearing evidence as to the first robbery which was subsequently dismissed on appeal, is denied.

Defense counsel claims that cross grand jury notice was served, and the defendant was produced to testify in the grand jury. Defense counsel also claims that a Waiver of Immunity was executed, and cross grand jury was not withdrawn. Defense counsel further claims that despite this, the defendant did not testify, and he was indicted.

Defense counsel acknowledges that, a motion to dismiss on the ground that his right to testify before the grand jury was violated, was filed and that such motion was denied. Defense counsel contends that the defendant filed a pro se motion to reargue which was adopted by defense counsel and that motion was also denied. Defense counsel also contends that the defendant filed a pro se supplemental brief arguing that his right to testify was violated and that his counsel was ineffective on this issue.

The defendant appears to move to dismiss the indictment on the ground that the initial Grand Jurors heard evidence of the first robbery which was subsequently dismissed on appeal and that the defendant did not have the opportunity to testify before those Grand Jurors.

The prosecutor notes that the Second Department ruled that "[t]he defendant's remaining contentions either need not be reached in light of our determination or are without merit." (People v Simon, 234 AD3d 720, 723 [2025].) The prosecutor interprets the appellate court's ruling to mean that a new trial on the remaining counts is necessary because of the improper replacement of a juror during deliberations and not because the remaining counts were affected by an alleged CPL 190.50 violation or the identification issue. The prosecutor asserts that the appellate court did not direct that the remaining issues were remitted to the trial court for decision and therefore the appellate court determined that any argument related to the alleged CPL 190.50 violation had no merit or needed not to be addressed.

The prosecutor claims that the defendant should file a motion to reargue with the Second Department as to his alleged violation of CPL 190.50. The prosecutor notes that defense counsel has raised the same factual allegations concerning the alleged CPL 190.50 violation that was raised before the Second Department. The prosecutor also notes that defense counsel is requesting that this court address the CPL 190.50 violation and conclude differently from the Second Department.

In this case, the defendant has asked that this court address his CPL 190.50 motion. This court notes that such motion was initially filed on April 27, 2016, shortly after the indictment was filed and a court denied the motion. This court also notes that the defendant filed with the Second Department, a pro se brief that his right to testify before the Grand Jury was violated, which was adopted by appellate counsel.

In the defendant's appeal, the Second Department reversed the defendant's conviction on the ground that a juror was improperly replaced during deliberations and dismissed counts in which related to the first robbery on the ground that the identification procedure was unduly suggestive. As to any remaining issues, the Second Department ruled that were either without merit or did not need to be addressed given their determination.

Given that the defendant's motion on the ground that his right to testify before a Grand Jury, pursuant to CPL 190.50, was submitted and denied and that such ground was also raised on his direct appeal, this court will not entertain any such motion.

The defendant's motion to dismiss the indictment on the ground that the Grand Jurors were possibly improperly influenced to indict the defendant as to the second robbery after hearing evidence as to the first robbery which was subsequently dismissed on appeal, is denied.

The defendant's motion to dismiss the indictment on the grounds that the initial Grand Jurors heard evidence of the first robbery which was subsequently dismissed on appeal and that the defendant did not have the opportunity to testify before those Grand Jurors, is also denied.

This constitutes the decision and order of the court.