The defendant has brought omnibus motions seeking to compel discovery, to strike the People's Certificate of Compliance, a Huntley hearing, a Wade hearing, severance, dismissal of the indictment, a motion in limine, and to reopen a hearing. The Court makes its findings after considering the defendant's Affirmation in Support of Defendant's Omnibus Pretrial Motion dated May 8,2024, the Affirmation in Support of Defendant's Omnibus Supplemental Pretrial Motion dated July 3, 2024, the defendant's Affirmation in Support of Supplement to Omnibus Motion Based Upon Newly Discovered Evidence and Memorandum of Law dated September 6, 2024, the People's Response to Defendant's Motion dated October 11, 2024, oral arguments heard on December 11, 2024, the People's Affidavit in support of a motion requesting a pretrial determination regarding the admissibility of prior testimony of deceased witnesses dated April 11, 2025, and the defendant's Sur-Reply dated August 21, 2025.

Discovery

The defendant first requests that the Court order the People to provide certain materials pursuant to discovery. He requests that the People be ordered to provide "complete files" for convictions of defense witnesses Darius Belton, Janajah Payne, Robert Ballentine, Camille Ballentine, Edwin Ridgeway and Robert James Thornton. The People argue that there is no statutory authority for this request. They argue that CPL 245.20(1)(p) requires the prosecution to provide "a complete record of judgments of conviction for all defendants and all persons designated as potential prosecution witnesses pursuant to paragraph (c) of this subdivision, other than witnesses who are experts". The Court agrees. Because the persons listed by the defense are not prosecution witnesses, the People are not required to provide complete records of judgments of conviction. Furthermore, in instances where the People are actually required to provide judgments of conviction, CPL 245.20(1)(p) merely requires a complete list of judgments of conviction, not "complete files". Therefore, the defendant's request for an order that the People provide complete files for defense witnesses is DENIED.

The defendant next contends that the People have failed to provide contact information [*2]for defense witnesses. The Court finds that these witnesses are "persons other than law enforcement personnel whom the prosecutor knows to have evidence or information relevant to any offense charged or any potential defense thereto " under CPL 245.20(1)(c). Therefore, the People have a duty to provide "names and adequate contact information" for these witnesses. The People indicate that they have provided the last known addresses for Darius Belton and Janajah Payne, but have no contact information for Robert Ballentine, Camille Ballentine, Edwin Ridgeway and Robert James Thornton. The Court finds that the People are in compliance with CPL 245.20(1)(c) and the defendant's request for a discovery order relating to this material is DENIED.

The People further indicate that they have provided all discovery materials relating to the cell phone extraction and DNA testing, and that no materials exist relating to cell phone call records, fingerprints or boot prints. Accordingly, the defendant's request for discovery orders relating to these materials is DENIED.

The defendant also requests the disciplinary records of police officers who will testify at trial. The People indicate in their responding papers that all such disciplinary records for police officers who they intend to call as witnesses at trial have been provided to the defense. The Court finds that the People are in compliance with CPL 245.20(1)(k)(iv), and the defendant's request for a discovery order relating to disciplinary records is DENIED.

Motion to Strike Certificate of Compliance

The defendant contends that the People's Certificate of Compliance dated January 8, 2024, should be stricken because the People failed to provide discovery materials requested in writing on May 1, 2024. However, as noted above, the materials requested by the defendant have either been provided or do not exist. The standard for whether a Certificate of Compliance has been properly filed, is whether the prosecution has exercised due diligence and made reasonable inquiries to ascertain the existence of material and information subject to discovery. The People must make reasonable efforts to comply with statutory directives, People v Bay, 41 NY3d 200. The Court finds that the People have met this burden. The defendant's motion to strike the People's Certificate of Compliance is, therefore, DENIED.

Huntley

The defendant requests a Huntley hearing. He waived such a hearing on December 14, 2011, prior to his original trial. The defendant now requests that statements he made to police and memorialized by the People in their CPL 710.30 form, be suppressed if such statements were made while he was represented by counsel on other charges. He does not allege that the statements were not voluntary. Therefore, the defendant's request for a Huntley is GRANTED on the sole issue of whether the defendant was represented by counsel at the time of the statements.

Wade

The defendant moves for a new Wade hearing, notwithstanding the trial court's prior determination on December 14, 2011, which found the police photo array procedure was not unduly suggestive. As a general principle, courts do not relitigate orders resolving suppression hearings (see People v Evans, 94 NY2d 499).

The defendant contends that alleged Brady violations by the People warrant a second hearing, citing People v Geaslen, 54 NY2d 510, and People v Williams, 7 NY3d 15. However, the defendant's reliance on these cases is misplaced. In both Geaslen and Williams, the withheld Brady material directly implicated the credibility of witnesses testifying at the suppression [*3]hearing, thereby necessitating a new hearing for proper cross-examination.

In the instant matter, the purportedly exculpatory information has no bearing on the central issue of the Wade hearing—the suggestiveness of the photo array. Nor does it impact the credibility of the officer who administered the identification procedure. Accordingly, the defendant's motion for a new Wade hearing is DENIED.

The defendant requests a pretrial ruling on the admissibility of certain expert testimony concerning mistaken identity. The People do not contest the admissibility of such evidence. Accordingly, the defendant's motion in limine regarding the admissibility of expert testimony regarding mistaken identity is GRANTED.

Severance/Motion to Preclude Prior Testimony

The defendant requests severance of charges relating to the Rizzo and Tierney incidents. The Court first finds that the charges in the indictment were properly joinable. The defendant was charged with Attempted Robbery in the First Degree, PL110.00/160.15(4), 20.00, Robbery in the First Degree, PL 160.15(4), 20.00, Robbery in the Second Degree, PL 160.10(1), 20.00, and Robbery in the Second Degree, PL 160.10(3), 20.00. The first count pertains to the incident at Rizzo's furniture store on December 17, 2010, and the remaining three charges pertained to the incident involving Joseph Tierney on December 19, 2010. These four charges are joinable under CPL 200.20(2)(c) because they are similar in law. Each of the charges share elements of the crimes, and the criminal conduct at the heart of the crimes are the same, People v Pierce, 14 NY3d 546. For these reasons, the charges were properly joinable.

The Court next finds that the charges were not properly joinable under CPL 200.20(2)(b). Although the two incidents involved crimes where multiple assailants committed or attempted to commit robberies by threatening the use of weapons, the modus operandi of the incidents were not sufficiently unique that proof of one of the crimes would be admissible as evidence in chief upon trial of the other, People v Matthews, 175 AD2d 24.

The Court further finds that CPL 220.20(3) is applicable because the charges in the indictment were joinable soley based upon their similarity in law. That section states that good cause for severance includes, "(a) substantially more proof on one or more joinable offense than on others, and there is a substantial likelihood that the jury would be unable to consider the proof as it relates to each offense, or (b) a convincing showing that a defendant has both important testimony to give concerning one count and a genuine need to refrain from testifying on the other, which satisfies the court that the risk of prejudice is substantial."

The defendant argues that the testimony of two deceased witnesses in the Rizzo attempted robbery should be precluded at trial. He contends that if such testimony is precluded, there would be substantially more proof of the Tierney robbery then the Rizzo attempted robbery. He further argues that because of the significant lack of evidence in the Rizzo case, he would have a genuine need not to testify with respect to those counts, but would still have important testimony to give with respect to the Tierney counts.

The People request a pretrial ruling on the admissibility of transcripts of the trial testimony of two deceased witnesses, Walter Karey and Stefan Kary. The defendant contends these transcripts should not be admitted at trial because the admission of this evidence would deprive him of his opportunity to cross examine the witnesses regarding exculpatory material wrongfully withheld by the People.

CPL 670.10 and CPL 670.20(1) establish the rules regarding the admissibility of [*4]testimony given by witnesses at a previous trial. Under these provisions, such prior testimony is admissible when that witness becomes unavailable by reason of death, illness or incapacity, or cannot with due diligence be found or brought before the court. Before such evidence is admitted at trial, it must be shown that: 1. the witness is unavailable, 2. the testimony is material, and 3. the testimony was reliable, People v Robinson, 89 NY2d 648. Here, the Court finds that the transcripts and testimony of the deceased witnesses meet all three of these requirements. First, the People have provided copies of the obituaries of the deceased witnesses, thus showing their unavailability. Second, copies of the transcripts of the testimony of these witnesses at the original trial were also provided to the Court. These transcripts show that Walter Kary and Stefan Kary were both eyewitnesses to the Rizzo's incident. This satisfies the requirement that the evidence must be material. Finally, with respect to the issue of the reliability of the evidence, the Court finds that the defendant was present during the original trial, that he was represented by counsel, that the witnesses were under oath, that trial counsel had full opportunity to cross examine the witnesses, and that there was an adherence to the rule against the admission of hearsay evidence. All these factors demonstrate the reliability of the testimony, People v Arroyo, 54 NY2d 567. Because the transcripts of prior testimony of the deceased witnesses meet all three requirements, they will be admissible at the defendant's retrial if a proper foundation is laid.

The defendant contends that if the transcripts of the prior testimony are allowed into evidence at trial, he would be denied his right to cross examination. Specifically, he argues that he would be denied an opportunity to cross examine the two deceased witnesses on the issue of the alleged involvement of Darius Belton. However, the test for whether the admission of prior testimony violates a defendant's right to confront accusing witnesses is not whether the defense had an opportunity to cross examine on every issue. Rather, the test is whether there was adequate opportunity to cross examine a witness at the prior proceeding and especially if counsel for the defendant availed himself of that opportunity, People v Simmons, 36 NY2d 126. The Court of Appeals has held that, if this test is met, then "the prior testimony bears sufficient 'indicia of reliability' and affords the trier of facts at the later proceeding a status factory basis for evaluating the truth of the prior testimony, Simmons at 130. In the present case, the Court finds the prior testimony meets this standard. Although the defense was not able to cross examine the witnesses on the specific issue of Darius Belton's possible involvement, the fact that the transcripts show that both witnesses were extensively cross examined affords the trier of facts at the new trial a satisfactory basis for evaluating the truth of the prior testimony.

The defense further argues that the prejudice to the defendant is particularly egregious because the inability to cross examine the deceased witnesses regarding the police report was caused by the malfeasance of the prosecution. The defense argues that the prosecution should be precluded from now benefiting from this impropriety by admitting the prior testimony. To address this issue of fundamental fairness, the Court finds that the jury should be given a special instruction. The Court will instruct the jury, both immediately before and immediately after the transcripts are read into evidence, that they may consider the fact that defense counsel at the original trial was not able to cross examine these witnesses on the issue of Mr. Belton's possible involvement because the defense was not in possession of the police report and subsequent DNA report at that time. Both parties will be given the opportunity to submit a proposed jury instruction in this regard.

The Court further finds that any unfairness arising from the defendant's inability to cross examine the deceased witnesses will be counterbalanced by his ability to simply argue to the jury [*5]that he has been prejudiced by the People's failure to provide the police report and DNA evidence. He may argue to the jury that he was unable to cross examine the deceased witnesses regarding potential misidentifications. He may also argue that he was denied a fair trial the first time around because exculpatory evidence was unavailable to him at that time. Both parties may argue that the deceased witnesses would or would not have confirmed their identifications of the defendant, and that the outcome of the original trial would or would not have been the same with this additional evidence. Ultimately, the jury will be left to decide the merits of these opposing positions.

Given the Court's finding of the admissibility of the transcripts, there would be no substantial difference in the quantum proof in each incident, People v McDougald, 155 AD2d 867. Similarly, because the quantum of proof would not be significantly less in the Rizzo incident, the defendant would have equivalent need to testify or to refrain from testifying in both. Therefore, severance is not required.

Accordingly, the defendant's motion for severance is DENIED.

Motions to Dismiss the Indictment

The defendant moves to dismiss the indictment on several grounds. The Court's findings are listed in the order argued by the defendant.

1. Legal Insufficiency

The defendant argues at the evidence as it currently stands is insufficient to convict him. In furtherance of his argument, the defendant asserts that certain facts have been established. For example, he states that DNA evidence exonerates him from the Rizzo attempted robbery. The Court disagrees. No facts have yet been established. A retrial has not yet commenced, and no testimony or other evidence has been received. The defendant's motion to dismiss the indictment for legal insufficiency is premature and is, therefore, DENIED.

2. Double Jeopardy

The defendant argues that the indictment should be dismissed on the grounds of double jeopardy. He states that a retrial after successfully vacating a conviction does not ordinarily violate double jeopardy, but does so when the evidence is legally insufficient, citing People v Biggs, 1 NY3d 225. In the present case, however, the original convictions were not vacated on the grounds of insufficient evidence. They were vacated for Brady violations. The Court finds that double jeopardy does not apply to the present case, except for the fourth count of the indictment, for which there was an acquittal. Therefore, the defendant's motion to dismiss counts one through three of the indictment on the grounds of double jeopardy is DENIED.

3. Collateral Estoppel

The defendant argues that the doctrine of collateral estoppel should be applied in the present case to bar re-litigation of issues necessarily resolved in his favor. However, the only issue thus far resolved in the defendant's favor has been the decision of this Court to vacate his conviction and grant a new trial pursuant to his CPL 440.10 motion. The doctrine of collateral estoppel does not require a dismissal. Accordingly, the defendant's motion to dismiss the indictment on the grounds of collateral estoppel is DENIED.

4. Brady Violations

The defendant contends that the indictment should be dismissed because of Brady violations by the People. In the alternative, he requests a preclusion of evidence. The defendant first argues that all charges should be dismissed due to the failure of the People to turn over a [*6]police report pertaining to Janajah Payne, and a DNA report linking Darius Belton to the knife left at the Rizzo attempted robbery scene. This Court has previously ruled that both were Brady violations.

The defendant further contends that the People's failure to disclose certain information obtained by defense investigators after his conviction constitute Brady Violations requiring a dismissal of the indictment. He maintains that the existence of a robbery and assault by Divine Maxwell and Taran Lewis one to three months after the Rizzo and Tierney incidents, a robbery by Edwin "Shorty" Ridgeway and Robert Thornton of a pawn shop In Niagara Falls on October 28, 2013, and a robbery by Rakeem Hamilton in August 2013, are all exculpatory information which should have been provided to the defense.

To determine if a Brady Violation has occurred, the court must apply a three-part test: first- was the evidence favorable to the defendant because it was exculpatory or impeaching in nature?; second- was the evidence suppressed by the people?; and third- was the defendant prejudiced because the information was material, People v Ulett, 33 NY3d 512. Regarding the first part of the test, the Court finds that evidence of other similar crimes may be considered exculpatory and impeaching in nature. However, under the second part of the test it cannot be said that the People suppressed this evidence. On the one hand, the Court recognizes that the People's Brady obligations are ongoing and do not stop at the time of conviction. On the other hand, the Court finds that the People's Brady obligations do not extend to providing the defendant with an ongoing list of similar crimes committed after his conviction. Under the third part of the test, the Court finds that the information was not material. None of the robberies alleged by the defendant to have been similar, took place before or at about the same time as the robbery and attempted robbery in the present case. The crimes committed by Divine Maxwell and Taran Lewis took place one to three months after the present crimes. The robberies by Mr. Ridgeway, Mr. Thornton, and Mr. Hamilton took place about two years after the present crimes. It cannot be said that the defendant was denied a fair trial in the absence of this evidence, Ulett, 33 NY3d 512.

The defendant cites no persuasive authority for his request to dismiss the indictment based upon the Brady violations previously found. The Court finds no compelling reason to dismiss the indictment on these grounds, and further finds that a preclusion of evidence is unwarranted. Accordingly, the defendant's motion to dismiss the indictment or in the alternative to preclude evidence based upon Brady violations is DENIED.

5. Prosecutorial Misconduct

The defendant seeks dismissal of the indictment for prosecutorial misconduct, citing the People's failure to turn over Brady material as a violation of the New York Rules of Professional Conduct (Rule 3.8). The Court's reasoning is twofold:

1. While the Court acknowledges that Rules 3.8(b) and 3.8(c) codify the Brady disclosure requirement, it will not issue a finding regarding a potential ethics violation.

2. More importantly, the Court has already addressed these Brady violations in its CPL § 440.10 decision. In that decision, the Court concluded that the prejudice from the non-disclosures was properly cured by granting a new trial, not by dismissing the indictment.

Therefore, because the appropriate remedy has already been granted, the defendant's motion to dismiss is DENIED.

6. Interest of Justice

By his oral motion at the proceedings on March 13, 2025, and by his written Notice of Partial Withdrawal dated March 14, 2025, the defendant has withdrawn his request to dismiss the indictment in the interest of justice pursuant to CPL 210.40(1). Therefore, the Court will not make any determinations with respect to this argument.

Motion to Reopen Hearing/Preclude Evidence

In his Affirmation in Support of Supplement to Omnibus Motion Based Upon Newly Discovered Evidence dated September 6, 2024, the defendant contends that his investigators have uncovered new exculpatory evidence. He states that witnesses have been located and interviewed by his investigators. Evidence alleged to have been uncovered includes statements to investigators by Robert Ballentine, the owner of a getaway car used in the Rizzo attempted robbery. The defendant claims that Mr. Ballentine was never interviewed by police. Investigators for the defense have also allegedly obtained statements from Divine Maxwell, who claims that he was one of the perpetrators of the Tierney robbery. The defendant argues that this newly discovered evidence is Brady material which was suppressed by the People. The defendant requests that the Court conduct a hearing wherein his investigators and witnesses testify regarding evidence uncovered in their recent investigation. He requests a hearing pursuant to CPL 245.80(2). This statute provides that remedies for non-compliance with a discovery order include ordering that a hearing be reopened. The defendant does not specify what hearing he is requesting to be reopened. In the alternative, he requests that identification evidence be precluded, and/or an adverse inference charge be given to the jury.

Although the evidence recently uncovered by defense investigators is exculpatory in nature, the Court finds that it was not suppressed by the People and was not in their possession (People v Ulett, 33 NY3d 512). Therefore, no sanctions are required. Accordingly, the defendant's request for a hearing and/or sanctions for failing to disclose evidence recently obtained by defense investigators is DENIED.

This constitutes the DECISION of the Court and it is so ORDERED.