SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF ROCKLANDTHE PEOPLE OF THE STATE OF NEW YORKDECISION ORDER?against-IND. 2013-481JOJO JOHN,Defendant.On July 26, 2013, a boat allegedly driven by the defendant left the PierrnontMarina headed toward Tarrytown. While approaching the Tappan Zee Bridgefrom the south side, the boat struck ,a construction barge. Two of the boathpassengers were thrown clear of the boat. Their bodies were recovered in the daysfollowing the collision. The defendant and three other passengers were injured inthe crash. It is alleged that the defendant was intoxicated at the time of theaccident.The instant indictment charges the defendant with two counts of VehicularManslaughter in the First Degree, six counts of Vehicular Manslaughter in theSecond Degree, two counts of Manslaughter in the Second Degree, two counts ofCriminally Negligent Homicide, six counts of Vehicular Assault in the SecondDegree and two counts of Operation of a Vessel While Under the In?uence of59 =5 91 an we.Arnaoiiaanv0 5&1 (321/11332321303Alcohol or Drugs. The defendant moves by omnibus motion, dated January 29,2014 for various forms of pre-trial relief. The People filed an affirmation inopposition. The defendant ?led a reply affirmation and the People filed anadditional affirmation in opposition?. The motion is decided as follows:A. Grand Jury Minutes/Dismissal of IndictmentPursuant to the defendant?s motion to inspect and review, the Court, incamera, reviewed the presentation of evidence and legal instructions to the GrandJury in order to determine the legal sufficiency of that presentation.This Court has reviewed the evidence presented and ?nds that thepresentation was legally sufficient to support the charges within the indictment.Viewing the evidence in the light must favorable to the People, and allowing forall reasonable inferences to be drawn from the evidence, the People havepresented evidence that makes out a primafacie case for each crime charged.See generally People v. Swamp, 84 725 (1995); People Manini, 79561 (1992); People V. Deegan, 69 N. Y.2d 969 (1987); People v. Mayo,36 1002 (1975). The Grand Jury was adequately instructed on the lawwith respect to the crimes charged and the attendant legal concepts . People v.-2- 49 389 (1980); People v. Hillaire, 270 359 (2nd Dep?t2000). There were no defects in the presentation of evidence that warrantdismissing the indictment. People V. Huston,?88 400 (1996).The defendant contends that the admission of a lab report indicating thepresence of benzoylecognine in the.defendant?s blood was unduly prejudicial. Insupport of his position he submits an affidavit of Elizabeth Spratt, a toxicologist,who opines that benzoylecognine is an inactive metabolite of cocaine and thus nota cause of any impairment.However, the People may not subscribe to Ms. Spratt?s interpretation.While not dispositive of the issue, at the least, the report shows that the defendantingested cocaine at some prior time. As such, it was clearly relevant to the issuesbefore the Grand Jury. Further, there was no error in admitting the lab reportwithout a witness to explain it. CPL Finally, the defendant complains that the People failed to presentexculpatory evidence to the Grand Jury. In particular, the defendant claims thatthe People were under the obligation to present evidence concerning the presenceand condition of lights on the barge and to play a videotaken from a passenger?scell phone.Generally, the People are under no obligation to present exculpatoryevidence to the Grand Jury unless the evidence would completely exonerate thedefendant and present an unnecessary prosecution. People v. Mitchell, 82 509 (1993). _S_e_e People V. Thompson, 2014 WL 641537 People 203 A.d.2d 488 (2nd Dep?t 1994). In any event, the People presentedevidence ??0m multiple witnesses concerning the lighting conditions and thepresence and condition of the lights themselves. The People also played the videoin question for the Grand Jury. hiThe defendant?s motion for disclosure of the Grand Jury minutes is alsodenied. In the Matter of the Attorney General of the State of New York V. Firetog,94 477 (2000).B. - Suppression of Blood Urine Samples from Nyack HospitalFour vials of blood and a vial of urine were recovered pursuant to a searchwarrant directing a search of Nyack Hospital. The warrant was issued by CountyCourt Judge Victor J. Al?eri. The caption on the warrant itself specified that thewarrant was issued by the County Court.C.P.L. provides that an application for a search warrant mustbe made in the local criminal court with preliminary jurisdiction over the offense.The defendant argues that because Judge Al?eri, a County Court Judge, signed the-4-warrant, he necessarily must have been acting as a local criminal court judgepursuant to C.P.L. C.P.L. ?690.45 provides that the warrant contain the name of the issue courtIt is therefore argued that the caption of warrant should bear the name of the -localcriminal court rather than the County Court. .?The standard for adherence with the statutory requirement is?substantial-?rather than litera1?compliance.? If ?a conscientious effort? wasmade to comply with the statutory requirement, and the warrant containsinformation from which the identity? of the issuing court may reasonably beinferred, courts will typically validate a warrant.? People v. Gavazzi, 20 907 (20l2)(citations omitted).In this case, unlike Gavazzi, where the warrant referred to a non-existenttown, the identity of the local court may be reasonably be inferred. Further, unlike aGavazzi, the name and court of the issuing judge are clear. Therefore, there wassubstantial compliance with the mandate of C.P.L. ?690.45.Additionally, the warrant contained probable cause that the defendant wasoperating the boat while intoxicated and the blood and urine samples containedevidence relating to the incident. ?690. 10(4). The affidavit in support of thewarrant averred that several witnesses stated that the defendant was driving theboat at the time of the accident and had consumed numerous drinks prior to the-5- accident. The affidavit also contains the defendant?s admissions concerning hisintoxicated condition while operating the boat prior to striking a stationary object.Finally, the application states that the vials contain samples taken from thedefendant following the accident and that they are located on the premises ofNyack Hospital. The fact that the identity of the actual staff member who drew theblood is not included in the application is not fatal.Finally, the seizure of the evidence did not violate the physician patientprivilege. The case law in this department clearly holds that blood samples takenfrom a patientpduring treatment are not covered by the physician patient privilege.People v. Elysee, 49 33 (2nd Dep?t 2(l07). The defendant reliance ontheCourt of Appeals decision in that case is misplaced. In People v. Elysee, 12100 (2009), the Court of Appeals upheld the Appellate divisions decisiondenying suppression. The Court of Appeals decision did not abrogate theappellate division holding that the physician patient privilege did not apply. TheCourt merely held that it did not have to decide that issue because the evidenceshould not be suppressed even if the privilege applied. Ld,Although not expressly authorized, once the blood and urine was properlyseized pursuant to the warrant, the police could have it analyzed. Following theexecution of the warrant, the issuing court, pursuant to C.P.L. directed that the samples be held byipolice. Once the items seized and held by the-5-police, the defendantnno longer hadva privacy interest in the property and it couldbe tested without further court order. People v. King, 232 111 (2nd Dep?t1997). also People v. Elysee, 49 33 (2nd Dep?t 2007); People v.Midgley, 196 Misc.2d 19 (Sup. Ct. Kings 2003).C. Suppression of Blood Sample taken by Court OrderOn June 26, 2013, Det. Douglas Lerner made an telephonic application toJudge Victor Al?eri for an Order compelling the defendant to provide a sample ofhis blood. The Order, as well as the colloquy during the application, refer toV.T.L. ?1l94 as the controlling statute. However, as the accident involved avessel rather than a vehicle Navigation Law ?49-a governs the issuance ofcompulsory blood orders.Other than the use of the term ?vessel? rather than ?vehicle,? the sectionsare virtually identical. The standards and procedure for issuance are identical.While there may have been some confusion over the applicable law, the correctstandards and procedures were nevertheless recognized and utilized. The legalityof the warrant depends on the application of those standards and procedures, notthe misstatement of the statutory section.The compulsory blood Order was supported by probable cause. Thedefendant?s own admissions, supported by the witness statements establish-7- cause that the defendant operated the boat in an intoxicated condition.Further, notwithstanding the injuries to those _at Nyack Hospital, the application alleges that two persons were thrown from the wreckage and remained missing inthe river several hours after the incident. Under the totality of the circumstancesthere is reasonable cause to believe that one or both of the missing personssuffered serious physical injury or had been killed.D. Suppression of Beer Bottles and Beer CansPursuant to a search warrant issued by Judge Victor Alfieri on July 27,2013, beer cans and beer bottles were recovered from the defendant?s boat- The 7defendant contends that the items should be suppressed because the search warrantapplication was not ?subscribed and sworn to? as required by C.P.L. A review of the face of the application demonstrates that the applicantsigned the warrant. The original application of the application contained withinthe Court?s ?le appears to have the jurat endorsed by Judge Al?eri.? However, onthe copy supplied by the defendant, the jurat was not signed by a notary or theissuing judge. The People may nevertheless demonstrate substantial compliancethrough adminicular evidence. People v. Rodriguez, 150 622 (2nd Dep?t1989). If the defendant maintains that the jurat was not properly endorsed, a1 A copy of the application maintained in the Court?s ?le is annexed to the decision.hearing will be held prior to trial to determine whether there was substantialcompliance with the mandates of C.P.L. E. Suppression of Buccal SwabOn July 28, 2013, subsequent to the defendant?s arraignment in localcriminal court, the People obtained and executed a warrant for buccal sample fromthe defendant. Neither the defendant nor counsel for the defendant received noticeprior to the application for the warrant or its execution.?Where, as here, there are no exigencies, we conclude that the People'sapplication for an order to compel a? suspect to provide a DNA sample must bemade upon notice to the suspect.? People V. Smith, 95 21 (4th Dep?t2012). The People concede that they failed to provided notice and consent to thea suppression of the swab.F. Suppression of StatementsThe defendant?s motion is granted insofar as a hearing will be heldimmediately prior to trial to determine the admissibility of any statements.G. Suppression of Identi?cationThe defendant?s motion is granted insofar as a hearing will be held-9-immediately prior to trial to dpeterrnine the propriety and the admissibility of anypre-?tria1 identi?cation procedures. H. Request for Brady MaterialAt this stage, the Court has no option other than to accept the People?srepresentations regarding the existence of exculpatory material. The People haveacknowledged their obligations and a Court order is unnecessary to place theburden on the People to preserve and disclose such information. People V.Ramirez, 224 455 (2nd Dep?t 1996). To the extent that the defendant hasrequested specific items alleged to exculpatory, the People proceed at their ownperil in determining whether to disclose them. People V. Scott, 88 888(1996); People v. Vilardi, 76 67 (1990).I. Motion to Preclude Evidence of Cocaine MetabolitesThe defendant has moved, inwlimine, to preclude the introduction ofevidence concerning cocaine metabolites in the defendant?s blood. Thedefendant?s expert Elizabeth Spratt, a toxicologist, is of the opinion thatbenzoylecognine is an-inactive metabolite of cocaine and thus not a cause of anyimpairment. Thus, according to the defendant, admission of evidence of cocainemetabolites would have no probative value and would be unduly prejudicial.?Accordingly, the Court will hold a hearing prior to trial to determine theadmissibility of this evidence.J. Spoliation of EvidenceThe defendant seeks dismissal or other sanctions for the People?s failure topreserve evidence. In particular, the defendant complains that the People failed topreserve the barges and the solar lights on the barge.According to the People, the large construction barges were inspected andphotographed on July 27, 2013. The barges were then released to Tappan ZeeConstructors. The defendant?s request to preserve the barge was made on August7, 2013. On August 27, 201-3, the defendant, apparently aware that the People didnot possess them, requested that the People ?retrieve? the lights from Tappan ZeeConstructors.As stated in the papers, the barges and the lights still Aexist. The defendant has not cited authority for the proposition that the Peoplehave a duty to preserve the status qzzo of a crime scene beyond the initialinvestigation. A duty may have arisen after the defendant requested preservationof the scene. However, the defendant?s request was not made until twelve daysafter the conclusion of the on sceneuinvestigation.C.P.L. ?240.20(2) speci?cally excludes items not within the People?s-11-possession, custody or control fromthe People?s disclosure requirements. also People v. Bass, 277 488 (9rd Dep?t 2000); People V. Davis, 169Mise.2d 977 (C0. Ct. Westchester 1996). The barges, were owned and controlledby Tappan Zee Constructors. They were only temporarily in the control of thePeople. It is unclear whether the People or Tappan Zee constructors had thewherewithal to preserve the status quo of the barges. Therefore, the People didnot err in releasing the barge to the pwner after it was inspected and thoroughlyphotographed. See People v. Radesi, 11 A.Dl3d 1007 (4th Dep?t 2004); People v. Bass, 277 488 (3rd Dep?t 2000); People v. Wilson, 156 1002 (4thDep?t 1989).With respect to the lights on the barges, once again the items were releasedto the owner prior to the defendant?s request to preserve them. Although they 9were inspected and photographed following the accident, they were not taken asevidence as there evidentiary value ?was not readily apparent in the immediateaftermath of the accident. People V. Scattareggia, 1'52 679 (2nd Dep?t1989). ?The police do not have a duty to preserve all material that might be ofconceivable evidentiary signi?cance especially when the exculpatory value of theevidence is purely speculative, as it is here.? omitted).In any event, the defendant, with the cooperation of the owner, hasinspected the barge. While the barge may not be configured exactly as it was onthe night of the accident, the physical inspection together with the photographstaken following the accident sufficiently set forth the physical characteristicspresent on the night of the accident.Additionally, the defendant and his experts have examined the three lightsrecovered from the scene. It is unc1_ear how, as claimed by the defendant, theretention of the lights by Tappan Zee Constructors in their offices rather theDistrict Attorney?s Of?ce effected the efficacy of the testing by the experts.Therefore, it seems clear that there should be no sanction for failure topreserve evidence. .K. Rosario MaterialThe defendant?s request for Rosario material is premature. The disclosure of Rosario material is statutorily prescribed. C.P.L. ??240.44 Further, there isno basis in law to support the defendant?s request that the material be provided bya certain date.L. Sandoval/Ventimigli_aThe defendant?s motion is granted insofar as a hearing will be heldimmediately prior to trial to determine the admissibility of any prior criminal orbad acts which the People seek to use in their direct case or use in the cross--13-ivexamination of the defendant. At least one day prior to the hearing, the People are to provide counsel for the defendant with an itemized list of prior convictionsand/or bad acts they will seek to introduce on their direct case or utilize in crossexamining the defendant.M. People?s motion for Defendant?s Medical RecordsThe People have moved by Order to Show Cause for an Order directing thata subpoena be issued for defendant?s medical records. The defendant ?led anaffirmation in opposition.The People seek the defenda1it?s medical records to rebut a claim by thedefendant that his statements made after the accident were involuntary due to theinjuries he sustained in the accident. The People contend that the defendant raisedthis issue in his omnibus motion and thus place his medical condition at issue.A defendant does not waive the physician patient privilege by challengingthe voluntariness of a statement based upon their physical condition at the time thestatement was made. People v. Osburn, 155 926 (4th Dep?t 1989). In Osburn, the defendant cross examined witnesses about her physical condition todemonstrate that her consent to a chemical test was involuntary and to explain herphysical appearance following the accident. The Court held that did notconstitute a waive of the privilege. -14- IAccordingly, the motion for g. subpoena is denied at this time.This Decision shall constitute the Order of the Court.ENTERDated: New City, New YorkApril 10, 2014 w1L' AM A.J.S.C.TO: THOMAS P. ZUGIBE, ESQ.District Attorney of Rockland CountyDAVID D. NARAIN, ESQ.-15- SEARCH WARRANT - APPLICATION C.P.L. 690.35 STATE OF NEW YORK: COUNTY COURTCOUNTY or ROCKLANDI Detective Douglas Lerner, a Police Detective with the Rockland County Sheriffs Department,does hereby make application for a search warrant pursuant to the provisions of Article690 of the Criminal Procedure Law and in connection therewith states as follows. First:That? there is reasonable cause to believe that certain property, of a character described inSection 690.10, subdivision 4 of the Criminal Procedure Law, to wit:Alcohol, alcohol containers, including bottles and cans, drinking glasses and cups, sodabottles and cans; restaurant and bar receipts, beverage coolers, evidence of residency, occupancyand/or ownership of premises and locations described in the warrant, including, but not limited tochecks, keys, and rental agreements; hereinafter referred to as property.?may be found in or upon the following designated or described place, vehicle or person, towit:A white 1999 Stingray speed boat, registration number NY 7172 NW. The boat iswhite in color. About halfway up the hull of the boat there is a dark colored line around the hull.There is a dark colored bumper stripe towards of the top of the boat. The boat bears theregistration 7172 on the top of the boat towards the front starboard side. Theregistration is written in black letters and numbers. See attached photograph. The boat has aninboard/outboard engine meaning that the motor is inside the boat, but the propeller bladesextend outside the boat. The port side of the hull bears the stingray company logo, whichconsists of the word ?stingray? and a picture of a stingray. The boat -is presently located atCornetta?s Marina, 641 Pierrnont Ave, Piermont, New York.Second: The following allegation of facts are submitted in support of the above statementand are based upon personal knowledge and information and belief as set forth below:1. I, Douglas Lerner, am the applicant herein. I am a Police Of?cer with the RocklandCounty Sheriffs Department. I have been a Police Officer since I999. I have been a Detectivefor the last ten years. Throughout my tenure as a Police Of?cer, my duties and responsibilitieshave included fire investigations, homicide investigations, and vehicle accidents and assaultinvestigations. As a? Police Officer, I have conducted numerous investigations involving boatingrelated crimes as well as alcohol related. crimes.2. There is probable cause to believe that the above-described target property may befound in the above-described boat.3. In support of your deponent's assertion as to the existence of probable cause, thefollowing facts are offered based upon personal knowledge and attested to by your deponent. 4. On July 26., 20.13" I 'ofEi'veHicular assault-Investigation involving a boat crash? on the Hudson River 'with"several injured parties. S. I spoke with John Schumacher at the Nyack Hospital Emergency Room. I aminformed by John Schumacher that he was traveling on the Hudson River on .the above-described"boat with ?ve other people. I am informed by John Schumacher that the boat was being operatedby a person named OJ 0 John and that OJ 0 John had consumed two to three alcoholic drinks andmay have consumed more "alcoholic drinks after that. I am informed by John Schumacher thatthe boat was traveling on the Hudson River when it collided with something. I am informed byJohn Schumacher that he observed the other people on the boat to be injured after the collision.6. I also spoke with Daniel Diiergi at the Nyack Hospital Emergency Room. aminformed by Daniel Diiergi that he was traveling on the Hudson River on the above?describedboat with five other people. I am informed by Daniel Diiergi that he observed JoJo Johnoperating the boat as it traveled on the Hudson River. I am informed by Daniel Diiergi that heobserved JoJo John consume a Michelob Ultra beer prior to operating the boat. I am in_forme._dby Daniel Diiergi that the boat traveled from Stony Point down the Hudson River to the 701 PierRestaurant and Bar in Piermont, New York.7. I further informed by Daniel Diiergi that while at 701 Piermont he observed JoJoJohn consume at least two alcoholic beverages. I am informed by Daniel Diiergi that after- leaving 701 Piermont they traveled north on the Hudson River and that o?Jo John was stilloperating the boat. I am informed by Daniel Diiergi that they were planning on going to the-Sunset Cove Bar and Restaurant in Tarrytown, New York, but the boat collided with somethingin the river en route.8. I am further informed by Daniel Diiergi that oJ John was operating the boat whenthe collision occurred. I am informed by Daniel Diiergi that he was injured as a result of thecollision. I observed Daniel Diiergi to have scrapes and lacerations on the left side of his head.9. I also spoke with JoJo John at the Nyack Hospital Emergency Room who informed me that he was operating the above?described boat and was going to pick up people at variouslocations along the river. At first oJo John stated that only two people were on the boat, butlater he "stated that there were more people on the boat. While ?speaking with oJ 0 John Iobserved his speech to be slurred. Based on my training _and experience, I know that slurredspeech is an indication of intoxication.10. While at the Nyack Hospital Emergency Room I observed Brian Bond who was alsoon the above?described boat when the collision occurred. I observed Brian Bond to be seriouslyinjured. He had a severe laceration on his head. I am informed by Emergency Room staff thatBrian Bond suffered a fractured skull. I am informed by Emergency Room staff that Brian Bond?s injuries are so severe that he had to be transferred to a trauma center for more intensivecare. Brian Bond has since been transferred to Westchester Medical Center.. 11. I am informed by Rockland County Sheriffs Department Detective Brian Weliksonthat he interviewed Daniel W. Goswick Jr., who is a Captain with the Pierrnont Fire Department.Captain Goswick stated that on July 26, 2013 at approximately 10:39 PM the Piermont FireDepartment responded to a boating accident on the Hudson River just south of the Tappan ZeeBridge. 12. I am informed by Detective Welikson that Capatain Goswick stated the accident- - happened in the area of the channel on the Rockland side. Captain Goswick stated that he spoke -to four people on the above-describe boat after the collision. He observed the people to beinjured. Some of them indicated that two of the people on the boat were missing.13. I am informed by Detective Welikson that Captain Goswick stated that oJo John wasobserved to be unresponsive and transported to the nearby marina for medical aid. While enroute to the marina ol 0 John became responsive and began speaking. Jojo John stated that heremembered what happened, that they were coming back from the city. JoJo John stated ?wehave been drinking all night, we are heading homefrom the city.? oJ John then started tomumble his words, but was able to state where he was. When asked about the boating accidentJoJo John stated ?It was my fault. I was drinking.?14. I am informed by Detective Stoll of the Rockland County Sheriff? Department thatthe above-described boat was towed from the river and parked on land at Cornetta?-s Marina,which is located at 641 Piermont Ave, Piermont, New York. I observed aphotograph of the boatwhich was taken by Bureauof Criminal Investigation detectives. The photograph was takenafterthe boat was ?parked at Cornetta?s Marina. I observed the boat to have signi?cant front-enddamage. See attached photograph. Based on my training and experience, I know that suchdamage is consistent with a high?speed river collision. . Based on? the foregoing-, it is respectfully subrnittedlthat there is probable cause to believethe ab_ove-described white 1999 Stingray speed boat, registration number NY 7172 NW, containsalcohol, alcohol containers, including bottles and cans, drinking glasses and cups, soda bottlesand cans; restaurant and bar receipts, beverage coolers, evidence of residency, occupancy and/orownership of premises and locations described in the warrant, including, but not limited to bills,canceled checks, keys, and rental agreements.-Wherefore, the applicant requests that this court issue a search warrant directing a searchfor and a seizure of, the above-described property in or upon the above described or designatedplace. A . Uetective DoiugleylfernerSubscribed and Sworn tobefore -