The opinion
People v Kelley
2023 NY Slip Op 34726(U)
October 17, 2023
Supreme Court, Westchester County
Docket Number: Ind. No. 23-71894-001
Judge: Robert A. Neary
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publication.
FILED
AND
ENTERED
ON/().-, 7 _. 202J
WESTCHESTER
COUNTY CLERK
\
. SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
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THE PEOPLE OF THE STATE OF NEW YORK
- against - DECISION AND ORDER
TEVIN KELLEY, Ind. No: 23-71894-001
Defendant.
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NEARY, J.
The defendant, Tevin.Kelley, ~as been charged w1th the crimes of Attempted
Murder in ·the Second Degree, Assault in. the First Degree, Criminal Possession of a Weaponin
the Second Degree and Criminal Possession of a Weapon in the Third Degree. The defendant
has made an omnibus motion which consists of a Notice of Motion and an Affirmation and
Memorandum of Law in Support thereof. In response, the People have filed an Affirmation in
. ..'
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FILED -
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1\M0ltlY c..,ooNI
COUNTY CL£R~i,111R
COUMff Of WUlCK
[* 1]
People v. Tevin Kelley
Indictment No. 23-71894-001
Opposition t<;>gether with a Memorandum of Law. Having read all of the submitted papers and
reviewed the court file, this Court makes the following determination.
A. MOTION TO INSPECT THE GRAND JURY MINUTES AND TO DISMISS OR
REDUCE EACH COUNT OF THE INDICTMENT AS NOT SUPPORTED BY
LEGALLY SUFFICIENT EVIDENCE PURSUANT TO CPL 210.20(1)(B) AND 210.30
The defendant's motion to inspect the Grand Jury minutes is granted. Upon an in
camera inspection of the Grand Jury minutes by Court, the motion to dismiss the indictment or
reduce a charged offense in the indictment is denied.
The Court has.reviewed the minutes of the proceeding before the Grand Jury.
The Grand Jury was properly instructed (see People v. Ca/bud, 49 NY2d 389,426 NYS2d 389,
402 NE2d 1140 and People v. Valles, 62 NY2d 36,476 NYS2d 50,464 NE2d 418)and the
evidence presented, if accepted as true would be legally sufficient to establish every element of
the offenses charged. [See CPL §210.30(2)]. In addition, the minutes reveal that a quorum of the
-grand jurors was present during the presentation of evidence and at the time the district attorney
instructed the Grand Jury on the law, and that it was instructed that only those grand jurors who
had heard all the evidence could participate in voting"on the matter.
The Court does not find that the release of the Grand Jury minutes or certain
portions thereof to the parties was necessary to assist the Court in making this determination.
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[* 2]
People v. Tevin Kelley
Indictment No. 23-71894-001
B. MOTION TO SUPPRESS FROM USE AS EVIDENCE AT ANY TRIAL, CERTAIN
STATEMENTS NOTICED BY THE PEOPLE ALLEGED TO HAVE BEEN MADE
BY THE DEFENDANT OR IN THE ALTERNATIVE FOR A HUNTLEY HEARING
PURSUANT TO CPL ARTICLE 710
This branch of the defendant's motion is granted to the extent that a Huntley
hearing shall be held prior to trial to determine whether any·statements allegedly made by the
defendant, which have been noticed by the People pursuant to CPL §710.30 (l)(a), were
involuntarily made by the defendant within the meaning of CPL §60.45 (see CPL §710.20(3),
CPL §710.60(3](b]; People v. Weaver, 49 NY2d 1012, 429 NYS2d 399,406 NE2d 1335),
obtained in violation of defendant's Sixth Amendment right to counsel.
C. MOTION TO SUPPRESS FROM USE AS EVIDENCE AT ANY TRIAL, PRE-TRIAL
IDENTIFICATIONS OF THE DEFENDANT NOTICED BY THE PEOPLE OR IN
THE ALTERNATIVE FOR A WADE HEARING PURSUANT TO CPL ARTICLE 710
This motion is granted to the limited extent of conducting a hearing prior to trial
to determine whether or not the noticed identifications made as a result of a viewing of a
photographic array were unduly suggestive. (See United States v. Wade, 388 US 218, 87 S Ct.
1926, ·18 LE2d 1149]. Specifically, the Court shall determine whether the identifications were so
improperly suggestive as to taint any in-court identification. In the event the identifications are
found to be unduly suggestive, the Court shall then go on to consider whether the People have
proven by clear and convincing evidence that an independent source exists for such witness'
proposed in-court identific;ation.
(
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[* 3]
·People v. Tevin Kelley
Indictment No. 23-71894-001
With respect to the viewing by detectives, the motion is denied. The evidence before
the Grand Jury establishes that those noticed identifications were not, in fact, the type of procedures
which are subject to suppression. The viewing of video footage and still photographs of the crime in
progress are merely confirmatory and did not involve any type of selection process. Suggestiveness
is not an issue ·in such situations. [See People v, Moreno, 148 AD3d 827; People. Deverow, 153
AD3d 550].
In addition, the evidence before the Grand Jury establishes the subject of the
witness' familiarity with the defendant. When the People oppose a Wade hearing because the
. .
parties are known to each other, a court.is permitted to consider the Grand Jury Testimony. [See
People v. Rodriguez, 4.7 AD3d 417, 849 NYS2d 232 (ls Dept. 2008); People v. Rumph, 28
AD2d 142,670 NYS2d 69 (Pt Dept. 1998); People v. Won, 208 AD2d 393,617 NYS2d 161 (Pt
Dept. 1994). In this case, the witness' testimony before the .Grand Jury established that the
defendant was very well knoWn to them. The record is clear that the identifying witness had a
prior familiarity with the defendant, the basis of which would render the witness impervious to
suggestion with respect to any identification procedure: [See People v. Rodriguez, 79 NY2d
445]. The motion to suppress is, therefore, denied.
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[* 4]
People v. 'Tevin Kelley
Indictment No. 23-71894-001
D. MOTION FOR A SANDOVAL/VENTIMIGLIA HEARJNG TO DETERMINE THE
ADMISSIBILITY OF ANY PRJOR CRIMINAL OR BAD ACTS FOR USE BY THE
· PEOPLE ON THEIR DIRECT CASE OR DURJNG THE CROSS EXAMINATION OF
THE DEFENDANT
Immediately prior to commencement of jury selection, the prosecutor shall, upon
· request of the defendant, notify the defendant of any prior criminal act which the People seek to
·use in the cross-examination of the defendant as well as all specific instances of the defendant's
prior uncharged criminal, vicious or immoral conduct of which the prosecutor has knowledge
and which the prosecutor intends to use at trial for the purposes of impeaching the credibility of
the defendant. Thereafter, upon the defendant's request, the trial court shall conduct a Sandoval
and/or Ventimiglia hearing- prior to the commencement of trial. [See People v. Sandoval, 34
NY2d 371 (1974); People v. Ventimiglia, 52 NY2d 350 (1981); People v. Molineux, 168 NY 264
(1901 )].
E. MOTION TO RESERVE THE RIGHT TO MAKE FURTHER MOTION PURSUANT.
TO CPL 255.20(2) AND (3)
Upon a proper showing, the Court will entertain appropriate additional motions
based upon grounds of which the defendant could not, with due diligence, have been previously
aware, or which, for other good cause, could not reas_onably have been raised in this motion.
[See CPL §255.20(3)].
Page 5
[* 5]
People v. Tevin Kelley
Indictment No. 23-71894-001
. This constitutes the opinion, decision and order of this Court.
Dated: White Plains, New York
· October 17, 2023
ROBERT A. NEARY
SUPREME COURT JUST
Elizabeth H. Shumejda
Assistant District Attorney
Westchester County
Office of the District Attorney
Richard J. Daronco Courthouse
111 Martin Luther King Blvd.
White Plains, New York 10601
eshumejda@westchesterda.net
Richard L. Ferrante, Esq.
Attorney for Defendant
399 Knollwood Road, Suite 111
White Plains, New York 10603
ferrantelaw99@gmail.com
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