The defendant has moved, by way of a written motion, for various forms of relief including: 1) inspection by the defendant, or in the alternative by the Court, of the Grand Jury minutes for sufficiency of the evidence, and dismissal thereupon pursuant to Criminal Procedure Law (CPL) §§ 210.20 and 210.35; 2) discovery and bill of particular information; 3) dismissal of certain counts of the indictment; 4) preclusion of statements, pursuant to CPL § 710.30; 5) disclosure of certain Grand Jury testimony as discoverable pursuant to CPL § 240.20(1)(c); 6) suppression of blood test results; 7) examination of vehicle data recorder information; 8) Brady and Rosario material; and 9) an Order prohibiting the People from cross examining defendant, should she choose to testify at trial, regarding prior bad acts or convictions, or in the alternative, that a Sandoval hearing be conducted.

In arriving at the instant decision, the Court has received and considered the defendant's Omnibus Motion, together with exhibits, the People's Affirmation in Opposition, together with exhibits, and the defendant's Reply affirmation.

The People consent to an in camera review by the Court of the minutes of the Grand Jury proceeding and have provided a copy of the minutes and the Grand Jury exhibits to the court for review. The People have provided the defendant with a response to requests for discovery and bill of particular materials and consent to Sandoval and Ventimiglia hearings. The People oppose the motion in all other respects. [*2]

The Court has examined the minutes of the Grand Jury presentation, and it is the determination of the Court that the evidence presented to the Grand Jury is legally sufficient to support Counts One and Three of the indictment. Moreover, the Grand Jury was adequately instructed on the law, and the proceeding otherwise conforms to the requirements of Article 190 of the CPL as to these two counts.

"Legally sufficient evidence—defined as competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof' CPL § 70.10 (1) —means simply a prima facie case, not proof beyond a reasonable doubt" [People v. Mayo, 36 NY2d 1002, 1004 (1975)]. The reviewing court must consider whether the evidence, viewed most favorably to the People, if unexplained and uncontradicted—and deferring all questions as to the weight or quality of the evidence—would warrant conviction [People v. Mikuszewski, 73 NY2d 407, 411 (1989); People v. Jennings, 69 NY2d 103, 114-115 (1986); People v. Swamp,84 NY2d 725, 730 (1995)].

In arriving at the decision regarding the Grand Jury presentation, the Court finds that release of the Grand Jury minutes to the defendant is not "necessary to assist the court in making its determination on the motion" [see CPL § 210.30(3)]. The Court, therefore, declines to order release of the Grand Jury minutes to the defendant, except for the portions addressed below.

The defendant requests that the Court direct release of the Grand Jury testimony of any witness who testified as a forensic toxicologist, as well as that of any accident reconstruction witness. The defendant contends that the Grand Jury testimony of an expert on either of these two topics is, in essence, a report within the meaning of CPL § 240.20(1)(c). The People oppose the request on the ground that the minutes are not a report as contemplated by this statute.

CPL § 240.20(1)(c) provides that, upon demand by a defendant, the People must provide to defendant, among other enumerated items, the following:

"Any written report or document, or portion thereof, concerning a physical or mental examination, or scientific test or experiment, relating to the criminal action or proceeding which was made by, or at the request or direction of a public servant engaged in law enforcement activity, or which was made by a person whom the prosecutor intends to call as a witness at trial, or which the people intend to introduce at trial."

The Court of Appeals, in People v. Copicotto, 50 NY2d 222 (1980), made the following observation:

"The criminal discovery procedure embodied in article 240, adopted in substance from Rule 16 of the Federal Rules of Criminal Procedure, evinces a legislative determination that the trial of a criminal charge should not be a sporting event where each side remains ignorant of facts in the hands of the adversary until events unfold at trial. Broader pretrial discovery enables the defendant to make a more informed plea decision, minimizes the tactical and often unfair advantage to one side, and increases to some degree the opportunity for an accurate determination of guilt or innocence. In short, pretrial discovery by the defense and prosecution contributes substantially to the fair and effective administration of justice." Id. at 226 (Internal citations omitted).

While the Court observes that the requested Grand Jury testimony does not fit neatly within the definition of a "written report," the Court finds under the unique circumstances of the instant case, fundamental fairness requires that the defense be provided with a copy of the [*3]requested minutes. In order for the defense to adequately prepare for trial, and to be adequately apprised of the prosecution theory of the People's case, release of the Grand Jury minutes of these two experts is mandated. See also People v. Singh, 13 Misc 3d 1225A, 831 NYS2d 349 (County Ct. Suffolk, 2006).

CPL § 210.30(3) provides that prior to the release of any portion of the Grand Jury minutes, the District Attorney must be given an opportunity to present argument to the Court that release would not be in the public interest. Inasmuch as the People have already clearly and articulately put forth their arguments in opposition to the Grand Jury minutes in their Affidavit in Response, the Court finds that further argument would be unnecessary. Accordingly, the Court Orders that a copy of the Grand Jury testimony of witness Robert Genna regarding collision reconstruction and testimony of forensic scientist Lori Arendt regarding toxicology results shall be provided by the People to the defendant.

Next, the People have responded in writing to the defendant's demand for Discovery and a Bill of Particulars. "The sole function of a bill of particulars is to clarify a pleading, in this instance, the indictment [see People v. Davis, 41 NY2d 678, 679-680 (1977)]. Here, the Court holds "[t]he prosecution's bill of particulars advises defendant of the alleged date, time, locationand general nature of the misconduct with which he was charged and, thus, is sufficient to satisfy the People's obligation of informing defendant of the theory of the prosecution's case." People v. Thompson, 27 AD3d 888, 811 NYS2d 199 (3rd Dept, 2006.) The Court anticipates that discovery will continue to proceed voluntarily by both sides.

As to Count Two of the indictment, the defendant contends that this count violates CPL § 200.30 for being duplicitous by alleging the deaths of three persons within a single count of Manslaughter in the Second Degree. The defendant argues that the deaths of the three victims are separate offenses and the People have improperly charged them within a single count, potentially subjecting her to being convicted on this count with less than a unanimous verdict. The Court agrees.

"The test by which to determine whether a single count in an indictment is bad for duplicity is: Could the defendant under it be convicted of either one of the crimes charged therein, should the district attorney elect to waive the other?" People v. Rosado, 64 AD2d 172, 177, 409 NYS2d 216 (1st Dept, 1978), quoting People v. Klipfel, 160 NY 371, 374 (1899).Applying the test as set forth in Klipfel and Rosado, the defendant could be found guilty of Manslaughter in the Second Degree as to any one victim if the District Attorney chose to waive reference to the other two victims. If the defendant were to be convicted of this count as currently drafted, it would be impossible to determine as to which victim the jury reached a unanimous verdict. However, if there were three separate counts of Manslaughter in the Second Degree, it would be readily apparent as to which victim the jury unanimously agreed to convict or acquit the defendant.

Having found Count Two to be duplicitous, the People have the option of dismissing the count entirely without prejudice and re-presenting it as three separate counts to another Grand Jury [see People v. Seabrooke, 152 AD2d 963, 534 NYS2d 379 (2nd Dept, 1989)] or to amend the count pursuant to CPL § 200.70 by deleting reference to two of the three alleged victims named in Count Two to ensure only one crime is charged [see People v. Tolle, 144 A.D. 963, 534 NYS2d 271 (4th Dept, 1988)]. However, if the People choose to amend the indictment, they must [*4]do so within the limitations set forth by that provision. These limitations prohibit the court from granting the People's request to sever Count Two into three separate counts of Manslaughter in the Second Degree [see People v. Perez, 83 NY2d 269 (1994), holding that CPL § 200.70 "certainly does not extend the category so far as to allow the addition of an entirely new count"].

The Court also agrees with the defendant that Counts Four and Six of the indictment must be dismissed as time-barred pursuant to CPL § 30.10. These two counts, Operating a Motor Vehicle While Using a Mobile Telephone and Speeding, are both "petty offenses" within the meaning of CPL § 1.20(39) because both are "a violation or a traffic infraction." CPL § 30.10(2)(d) requires that "a prosecution for a petty offense must be commenced within one year after the commission thereof." The People do not dispute that more than one year elapsed between the time of alleged commission of these two offenses, May 30, 2008, and the filing of the instant de novo indictment on or about June 18, 2009.

The People contend that the traffic infractions are not time-barred since they are alleged to be part of the same transaction or occurrence as the higher grade counts in the indictment which are not time-barred. The People have offered no authority for this position and the Court is not aware of any. While this argument may have merit if the defendant sought dismissal pursuant to the speedy trial provisions set forth in CPL § 30.30, in the Court's view, the argument is unavailing where, as here, the charges are barred by the statute of limitations codified in CPL § 30.10. Although not binding, the Court agrees with the holding and reasoning in People v. Gulston, 181 Misc 2d 644, 650, 695 NYS2d 888, 892 (Sup. Ct., Kings County, 1999): "[A] court should look to each crime charged, and not to what other crimes are contained in the indictment. 'The prosecution may not circumvent the Statute of Limitations by appending otherwise time-barred offenses to charges as to which the statute has not [yet] run'", quoting People v. Hughes, 220 AD2d 529, 532, 632 NYS2d 585, 588 (2nd Dept, 1995). Accordingly, Counts Four and Six of the indictment are dismissed as time-barred.

Count Five of the indictment charges the defendant with Endangering the Welfare of a Child by "knowingly act[ing] in a manner likely to be injurious to the physical, mental, and moral welfare of a child less than seventeen years old whose identity is known to the Grand Jury." In the People's Bill of Particulars and Affirmation in Opposition to the defendant's Notice of Motion, they identify the "child" referred to in the indictment as Ashley Jorgensen-Kaiser. The People also assert that this child died as a direct result of the defendant's actions with regards to the car collision giving rise to the charges here, and therefore, these are the actions that allegedly endangered the child's welfare. It is undisputed that Ashley was not born until after this collision. The People ask this court to extend the meaning of the word "child" in Penal Law (PL) § 260.10(1) to include a fetus that is unborn at the time the actions allegedly endangering its welfare are taken. In support of their position, the People cite several Family Court cases, as well as PL § 125.00, which defines "homicide" as including acts which cause the death of "an unborn child with which a female has been pregnant for more than 24 weeks."

The defendant argues that she cannot be charged with Endangering the Welfare of a Child because this statute does not apply to unborn fetuses. In support of this position, the defendant cites People v. Morabito, 151 Misc 2d 259, 580 NYS2d 843 (Geneva City Ct., Ontario County, 1992), which holds that a mother who used illicit drugs during her pregnancy could not be prosecuted for Endangering the Welfare of a Child because a fetus is not a "child" within the [*5]meaning of the statute. Also, the defendant argues that although the homicide definition in PL § 125.00 encompasses an unborn child that has progressed past 24 weeks in utero, the Endangering the Welfare of a Child statute contains no comparable language, rendering it inapplicable to unborn fetuses.

In the Court's view, a plain reading of the Endangering the Welfare of a Child statute makes clear that it does not apply to unborn children. Had the legislature intended so, it would have included language similar to the language of PL § 125.00. The People have not cited any case law which upholds a prosecution for Endangering the Welfare of a Child involving an unborn child and the Court is not aware of any.

Although the People cite Family Court cases holding that an unborn fetus has the right to an order of protection under Article 8 of the Family Court Act [Matter of Gloria C. v William C., 124 Misc 2d 313, 476 NYS2d 991 (Family Ct. Richmond County, 1984)] and cases which find a child to be "neglected" by its mother under Article 10 the Family Court Act because of drug use during pregnancy [Matter of Vanesa F., 76 Misc 2d 617, 351 NYS2d 337 (Surrogate's Ct., New York, 1974)], the Court finds these cases inapplicable to criminal proceedings involving the interpretation of the Endangering the Welfare of a Child statute. The standard in Family Court in determining neglect, orders of protection, and the like is "the best interests of the child," unlike a criminal case where the People must prove beyond a reasonable doubt that the accused has committed the crime charged. Although the standard of review for legal sufficiency in the Grand Jury is lower, even viewing the facts in the light most favorable to the People, the facts as alleged and accepted as true here cannot result in conviction of Endangering the Welfare of a Child.

While the Court agrees with the rationale of the cited Family Court and Surrogate's Court cases, the Court finds no legal support for their application to a charge of Endangering the Welfare of a Child as currently drafted. In the Court's view, the issue is one which might deserve the attention of the legislature. Nonetheless, as currently drafted and applied, the Court holds that Endangering the Welfare of a Child may not be charged in connection with an unborn child. Accordingly, Count Five of the indictment is dismissed.

The defendant also moves to preclude statements allegedly made by the defendant and contained on a CPL § 710.30 Notice from the People. The defendant contends the Notice is insufficient because, although a date and location are noted, there is no time specified on the Notice. The People state that the statements were not made to law enforcement and, therefore, notice under CPL § 710.30 is not required. In her reply, the defendant does not contradict the People's claim that the statements were not made to law enforcement.

"A defendant is not entitled to notice with respect to statements made to a prosecution witness where that witness was a civilian and was neither a public servant nor acting as an agent of law enforcement authorities." CPL § 710.30 (1); People v. Grune, 139 AD2d 763, 527 NYS2d 976 (2nd Dept, 1988); People v. Hall, 133 AD2d 845, 520 NYS2d 360 (2nd Dept, 1987); People v. Rodriguez, 114 AD2d 525; 494 NYS2d 426 (2nd Dept, 1985); People v. Paredes, 166 AD2d 677, 561 NYS2d 267 (2nd Dept, 1990). Therefore, preclusion of the statements noted on the CPL § 710.30 Notice is denied at this time. The Court will not rule on suppression of the statements absent a request for such relief by the defendant.

The People consent to the defendant's request to examine the voice data recorder from defendant's vehicle. The People have also attached the full transcript of the application for the [*6]blood warrant as an exhibit to their Affidavit in Opposition.

Regarding the defendant's request to suppress the hospital blood taken from the defendant and seized by search warrant executed on June 2, 2008, the defendant argues that the seized blood was drawn at the hospital at the request of police personnel, not for medical reasons. The People state the blood was drawn as part of the defendant's medical treatment.

The People cite to People v. Elysee, 12 NY3d 100 (2009) as authority for seizing the hospital blood by search warrant. The Court of Appeals, in upholding the seizure of hospital blood from a defendant, specifically declined to decide the issue of whether hospital blood was protected by the physician-patient privilege under CPLR § 4504. Rather, the Court held, "it is illogical to conclude that a blood sample taken [at 5:30 am] cannot be seized pursuant to a properly issued court order, merely because the order issued after the blood was actually drawn by an authorized person."12 NY3d at 105. See also People v. Drayton, 56 AD3d 1278, 867 NYS2d 825 (4th Dept, 2008).

In the Court's view, the validity of the seizure of the blood here turns on whether the search warrant is valid, not on whether the physician-patient privilege attached to the blood. The Court has received and reviewed the instant search warrant and affidavit in support. "To be considered adequate, an application for a search warrant must provide the Magistrate with information sufficient to support a reasonable belief that evidence of a crime may be found in a certain place." People v. McCulloch, 226 AD2d 848, 849, 640 NYS2d 914, 915 (3rd Dept, 1996), citing People v. Edwards, 69 NY2d 814 (1987). Further, the Court of Appeals has held that "search warrant applications should not be read in a hypertechnical manner but rather must be considered in the clear light of everyday experience and accorded all reasonable inferences." People v. Hanlon, 36 NY2d 549, 559 (1975).

A review of the application in support of the instant search warrant makes clear that ample cause existed to believe that evidence of a crime could be found by seizing the hospital blood of the defendant. The application contains a sworn affidavit from Detective Roy Baillard detailing his investigation and the circumstances surrounding the drawing of the defendant's blood. Accordingly, having found the hospital blood was seized pursuant to a valid court order, the defendant's application to suppress the hospital blood taken from the defendant and seized by search warrant executed on June 2, 2008 is denied.

The Court is not ruling here on any potential chain of custody or foundational evidentiary challenges which the defendant may have prior to admission of the hospital blood evidence at trial.

This memorandum shall constitute the decision and Order of this Court.

J.S.C.

Dated: March 3, 2010