People v. Riley

• Decision Date: 16 September 2019
• Docket Number: Indictment No. 19-0524-01
• Citation: 2019 NY Slip Op 34891 (U)
• Parties: THE PEOPLE OF THE STATE OF NEW YORK v. DAVID RILEY and MICHAEL HEADY, Defendants.
• Court: New York Supreme Court

2019 NY Slip Op 34891(U)

THE PEOPLE OF THE STATE OF NEW YORK
v.
DAVID RILEY and MICHAEL HEADY, Defendants.

Indictment No. 19-0524-01

Supreme Court, Westchester County

September 16, 2019

Unpublished Opinion

HON. ANTHONY A. SCARPING, JR.

District Attorney, Westchester County

BY: VIRGINIA A. MARCIANO, ESQ.

Assistant District Attorney

MARIA I. WAGER, ESQ.

Assistant District Attorney

CLARE J. DEGNAN, ESQ.

The Legal Aid Society of Westchester County

BY: APRIL A. MCKENZIE, ESQ.

1

DECISION & ORDER

Honorable George E. Fufidio Westchester County Court Justice

Defendant, DAVID RILEY, having been indicted on or about May 22, 2019 for attempted robbery in the first degree (Penal Law § 110/160.15 [2]), attempted robbery in the second degree (Penal Law § 110/160.10[2A]), attempted assault in the first degree (Penal Law § 110/120.10[ 1 ]) assault in the second degree (Penal Law § 120.05[2]), assault in the second degree (Penal Law § 120.60 [6]), criminal possession in the second degree (Penal Law § 265.03 [3]) and attempted criminal sale of a controlled substance in the third degree (Penal Law § 110/220.39[ 1 ]) has filed an omnibus motion which consists of a Notice of Motion, an Affirmation in Support and a Memorandum of Law. In response, the People have filed an Affirmation in Opposition together with a Memorandum of Law. Upon consideration of these papers, the stenographic transcript of the grand jury minutes and the Consent Discovery Order entered in this case, this Court disposes of this motion as follows:

A & H. MOTION FOR DISCOVERY, DISCLOSURE AND INSPECTION CPL ARTICLE 240

Except where the People have already disclosed or consented to the inspection and discovery of certain evidence, the Defendant's motion for discovery is granted to the extent provided for in CPL 240. If there any further items discoverable pursuant to Criminal Procedure Law Article 240 which have not been provided to defendant pursuant to this Order, they are to be provided forthwith or the People shall seek a protective order explaining to the Court why certain items have not been provided to the Defendant pursuant to CPL 240.

As to the defendant's demand for exculpatory material, the People have acknowledged their continuing duty to disclose exculpatory material at the earliest possible date upon its discovery (see, Brady v Maryland, 373 U.S. 83 [1963]; Giglio v United States, 405 U.S. 150 [1972]). In the event that the People are, or become, aware of any material which is arguably exculpatory and they are not willing to consent to its disclosure to the defendant, they are directed to immediately disclose such material to the court to permit an in camera inspection and determination as to whether the material must be disclosed to the defendant.

Except to the extent that the defendant's application has been specifically granted herein, it is otherwise denied as seeking material or information beyond the scope of discovery (see, People v Colavito, 87 N.Y.2d 423 [1996]; Matter of Brown v Grosso, 285 A.D.2d 642 [2d Dept 2001];

2

Matter of Brown v Appelman, 241 A.D.2d 279 [2d Dept 1998]; Matter of Catterson v Jones, 229 A.D.2d 435 [2d Dept 1996]; Matter of Catterson v Rohl, 202 A.D.2d 420 [2d Dept 1994]).

B & C. MOTION TO SUPPRESS PHYSICAL EVIDENCE

While the Defendant moves to suppress evidence on the grounds of an illegal arrest, he offers no sworn allegation of fact in support of this contention and accordingly, his motion is summarily denied on this ground (People v France, 12 N.Y.3d 790 [2009]; People v Jones, 95 N.Y.2d 721 [2001]; CPL 710.60[3][b]; see also People v Scully, 442 U.S. 200 [1979]). Moreover, the Police had probable cause to arrest the Defendant because they had an accusation against him, made by identified citizens, that he had shot the victim (People v Griffin, 15 A.D.3d 502 [2^nd Dept. 2005]).

The Defendant has failed to identify, in particular, which physical evidence he seeks to suppress. With respect to evidence that was purportedly found in the victim's car, the victim's phone or his codefendant's Facebook account, the Defendant has failed to make even a base showing how he has standing to challenge evidence taken from these locations. Likewise, with respect to a bullet shell casing found on the street near where the crime is alleged to have taken place, the Defendant again has not shown why that evidence was not abandoned property or that he somehow has an expectation of privacy on the street or in the shell casing itself. If the Defendant can establish standing to challenge any of those things, then the Court will permit him to renew his motions.

The Defendant has also moved to controvert the search warrant used to secure information contained in his Facebook account. Upon review of the four comers of the search warrant affidavit and order, the Court finds that the warrant was supported by probable cause (People v Keves, 291 A.D.2d 571 [2^nd Dept. 2002]; see generally People v Badilla, 130 A.D.3d 744 [2^nd Dept. 2015]). The warrant affidavit demonstrated communication via Facebook between both co-defendants even after David Riley was arrested and incarcerated and it adequately explained how relevant evidence of this crime might be found in the Defendant's Facebook account.

With respect to the breadth of the warrant, the Defendant has, again, not shown what evidence was seized as a result of...