The defendant, Tylique Samuel, has submitted an omnibus motion, dated December 11, 2020, seeking: dismissal of the indictment based upon excessive pre-arrest delay; inspection of the grand jury minutes and dismissal or reduction of the indictment; suppression of evidence; preclusion of evidence; disclosure of the unredacted search warrant materials; disclosure of impeachment material; Molineux and Sandoval relief; and leave to file further motions. The People's response, dated December 17, 2020, consents to some of the relief sought and opposes other relief. The court decides the motion as follows.

The defendant has moved to dismiss the indictment, alleging the four-month period between the crime and his arrest was unreasonable and that he has suffered prejudice as a result. The People oppose the defendant's motion, contending that the delay was reasonable in light of the defendant's absence from his residence and other frequently-visited locations during this [*2]period and law enforcement's many attempts to apprehend him.

Under certain circumstances, a pre-arrest delay in prosecution may violate a defendant's right to due process. (People v Decker, 13 NY3d 12, 14 [2009].) Nevertheless, if the delay is based upon good faith and supported by "sufficient reasons," it does not deny a defendant due process, even if he has been prejudiced by the delay. (Id. [quoting People v Vernace, 96 NY2d 886 [2001].) In cases where the delay in arrest is extended, the People bear the burden of demonstrating good cause. (Id.)

The Court of Appeals has set forth a number of factors for determining whether a pre-arrest delay was justified by good cause. These factors include:

(1) the length of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay.

Here, the delay was neither extended nor unreasonable. Indeed, the period of delay was brief, just four months. Moreover, the People have established that, in the months between the incident and the arrest, police attempted to locate and arrest the defendant on numerous occasions. These efforts included going to the defendant's last known residence, visiting the homes of his family and close contacts, visiting his known hangouts, conducting surveillance at these locations, and obtaining subpoenas for cell phone records. And these attempts spanned all four of the months during which the defendant remained at large.

Given their repeated attempts to arrest the defendant, law enforcement plainly exercised great diligence in their efforts to apprehend him. Meanwhile, during this four-month period, the defendant apparently avoided every location that he otherwise usually frequented. Accordingly, the most reasonable inference to draw from these circumstances is that the defendant was attempting to evade apprehension. His efforts to do so should not redound to his benefit.

Further, the interval between the incident and the defendant's arrest was so brief that there is no reasonable argument that he was prejudiced by it. The defendant argues in his motion papers that the delay has rendered him unable to recall what he was doing on the date of the crime and, thus, unable to provide an alibi or otherwise prepare a defense. This claim is rather puzzling in light of the defendant's statement to police and grand jury testimony. On both of those occasions, while denying his involvement in the shooting itself, the defendant admitted to his presence at the barbecue where the shooting occurred on the time and date at issue. Given this testimony, his claim that he has no recollection of the date of the incident is, at the very least, inconsistent. Thus, the defendant's claim of prejudice is without merit.

Indeed, none of the factors enunciated by the Court of Appeals in evaluating a pre-arrest delay weighs in favor of the defendant's contention that the interval at issue here was unreasonable. The delay was quite short, the reason for the delay in apprehension (namely, the defendant's own efforts to evade capture) was consistent with good faith and reasonable, and the underlying charges are serious. In short, the defendant has failed to demonstrate that there was any unreasonable pre-arrest delay in this case or that he suffered any prejudice as a result. The defendant's motion to dismiss the indictment on this basis is, therefore, denied.

The defendant's motion to inspect the grand jury minutes is granted. The minutes reveal that a quorum of the grand jurors was present during the presentation of evidence and at the time the prosecutor instructed the grand jurors on the law. The indictment substantially conforms to the requirements set forth in CPL § 200.50. However, upon inspection of the minutes, this court has found the evidence before the grand jury to be legally insufficient.

In general, defects in a grand jury presentation require dismissal where "the integrity of the Grand Jury proceeding is impaired 'and prejudice to the defendant may result.'" (People v Huston, 88 NY2d 400, 402 [1996] [quoting CPL § 210.35[5]].) Here, this court concludes that a number of errors impaired the integrity of the proceeding and rendered the evidence before the grand jury legally insufficient. (See CPL § 210.35[5].)

Over the course of the grand jury presentation, Witness No.1 ^[FN1] and Witness #2 were the only witnesses who described the conduct that gave rise to charges in this case. In doing so, they referred to the defendant only by a street name. They did not ever refer to him by the name Tylique Samuel. Nor did they provide any identification of the defendant in any other way.

Detective Fresnel also testified before the grand jury. He explained that he arrived at the scene to investigate a shooting. Upon arriving, he saw the two victims and observed gunshot wounds to each of them. Each of the victims was removed to the hospital. Those facts were the only information Detective Fresnel provided about the day of the shooting itself. At the end of his testimony, the prosecutor asked Detective Fresnel whether he arrested anybody in connection with the shooting. Detective Fresnel said that he arrested Tylique Samuel. Fresnel did not, however, detail any of the steps in his investigation that led to the apprehension of Mr. Samuel. The prosecutor then asked whether the defendant went by any other name. Detective Fresnel provided the same street name that Witness #1 and Witness #2 provided. This testimony, along with the testimony of Witness #1 and Witness #2 and the medical records detailing the victim's injuries, was the only evidence before the grand jury, with the exception of the defendant's testimony, which will be addressed after the People's evidence.

Throughout this evidence, the only thing connecting the defendant to the shooting is the street name that Fresnel said he used. Based on the two witnesses' testimony, all the grand jury knew is that someone with a particular street name committed the actions at issue. The only further light Fresnel shed on the identity of the shooter was that Tylique Samuel was arrested in connection with the incident and Mr. Samuel used the same street name as the perpetrator. Setting aside the fact of his arrest, which of course is not evidence of his identity as the shooter, the only link between Mr. Samuel and the perpetrator was this street name. Thus, the evidence before the grand jury established only that someone with the same street name as Mr. Samuel shot the two victims. The street name was not so unusual that it is unlikely that it is shared by anyone else. Accordingly, this evidence was legally insufficient to establish the identity of the defendant as the perpetrator of these crimes.

In fact, the record makes clear that the grand jurors were confused about the identification evidence as well. After the prosecutor charged the grand jurors the first time, one [*3]of the jurors asked, "I would like to know if you can just go back — I want to know — I'm not sure if I heard the victim identifying the defendant." Thereafter, the grand jurors requested a read-back of a portion of the defendant's testimony and asked the prosecutor to recall Witness #1 and Witness #2 for further questioning. The prosecutor agreed and adjourned the presentation to schedule the witnesses' appearances. For whatever reason, however, on the next date the grand jurors apparently informed the prosecutor that they no longer wished to hear the requested evidence. Nonetheless, these questions support the conclusion that the grand jurors were, at the very least, confused about the evidence before them.

Moreover, because this case must be re-presented, there are a number of evidentiary issues that must be addressed as well. First, Detective Fresnel never explained the basis of his knowledge that the defendant used the street name at issue. From the testimony, it is impossible to know whether he knows the defendant personally and knows that he responds to that name or whether Fresnel learned that this was a street name used by the defendant from a witness or another officer. Because this basis is not adequately elucidated in the record, this court must conclude that this testimony constitutes implied hearsay. (See People v Rawlings, 178 AD2d 619, 620 [2d Dept 1991] ["[I]t was error to permit a housing police officer to testify that an unidentified female at the crime scene, who did not testify at trial, identified the defendant by a 'street name,' which was the defendant's 'street name.'"].) Although hearsay defects do not always impair the integrity of the grand jury proceedings, this defect was of great significance, because this street name was the only evidence presented by the People linking the defendant to these crimes. Moreover, this testimony was not used for any valid non-hearsay purpose, such as to explain the detective's investigatory actions. Instead, it was used only for its truth — namely, to establish that Tylique Samuel and the shooter who used that street name were one and the same. The use of this inadmissible hearsay evidence impaired the integrity of the grand jury proceedings and it should not be used in any future presentments in this matter without an adequate basis to establish that it is non-hearsay.

Although the defendant's testimony placed him at the scene of the shooting, he never admitted to any involvement in the shooting itself. Nor did he admit to using the street name discussed above. Thus, the hearsay testimony regarding the defendant's alleged street name remained the only evidence linking the defendant to the criminal conduct in this case. It should also be noted, with respect to the defendant's testimony, that the People failed to provide a corroboration charge, creating a risk that the grand jurors would indict based on his admissions alone.

As a final matter, the People introduced an Instagram post during their cross-examination of the defendant. No proper foundation, however, was laid for the use of such evidence. There is no evidence in the record about the page on which this photograph was posted, who posted it, who maintained that account, when it was accessed, who added the tags to the post, or whether it was a fair and accurate representation of what was posted to the Instagram account. (See People v Price, 29 NY3d 472, 478-480 [2017]; People v Wells, 161 AD3d 1200, 1200 [2d Dept 2018].) While the People may have sufficiently authenticated the photograph contained within the Instagram post through the defendant, they provided no foundation for the post as a whole. This evidence was, therefore, improperly introduced before the grand jury.

Further, this evidence was highly prejudicial, as the defendant was tagged "shooter" in the image. While the post was relevant, as it showed the defendant at the scene, its probative value was negligible, because the defendant had already admitted to being present at the scene. [*4]In comparison, its prejudicial effect cannot be overstated because it created the risk that the grand jurors would believe that some unknown person tagged the defendant in the photograph as "shooter." Essentially, this amounts to the suggestion that an identification was made by some anonymous individual. In a case with such weak identification evidence, the prejudicial effect of this evidence greatly outweighed its probative value.

The cumulative effective of these evidentiary errors was such that it impaired the integrity of the grand jury proceedings. The defendant was clearly prejudiced, because, with the introduction of this inadmissible evidence, he was indicted despite the lack of legally sufficient evidence.

For all of these reasons, the defendant's motion to dismiss the indictment is granted with leave for the People to re-present within thirty days. In light of this determination, the court need not address the defendant's remaining claims.

This court issues this order as both a reminder and a directive that counsel uphold their constitutional, statutory and ethical responsibilities in the above-captioned proceeding:

To the Prosecutor:

The District Attorney and the Assistant responsible for the case, or, if the matter is not being prosecuted by the District Attorney, the prosecuting agency and its assigned representative, is directed to make timely disclosures of information favorable to the defense as required by Brady v Maryland, 373 US 83 (1963), Giglio v United States, 405 US 150 (1972), People v Geaslen, 54 NY2d 510 (1981), and their progeny under the United States and New York State constitutions, and pursuant to Criminal Procedure Law (CPL) article 245 and Rule 3.8(b) of the New York State Rules of Professional Conduct, as described hereafter.

• The District Attorney and the Assistant responsible for the case have a duty to learn of such favorable information that is known to others acting on the government's behalf in the case, including the police, and should therefore confer with investigative and prosecutorial personnel who acted in this case and review their and their agencies' files directly related to the prosecution or investigation of this case.

• Favorable information could include, but is not limited to:

a) Information that impeaches the credibility of a testifying prosecution witness, including (i) benefits, promises, rewards or inducements, express or tacit, made to a witness by a law enforcement official or law enforcement victim services agency in connection with giving testimony or cooperating in the case; (ii) a witness's prior inconsistent statements, written or oral; (iii) a witness's prior convictions and uncharged criminal conduct; (iv) information that tends to show that a witness has a motive to lie to inculpate the defendant, or a bias against the defendant or in favor of the complainant or the prosecution; and (v) information that tends to show impairment of a witness's ability to perceive, recall, or recount relevant events, including impairment of that ability resulting from mental or physical illness or substance abuse.

b) Information that tends to exculpate, reduce the degree of an offense, or support a potential defense to a charged offense.

c) Information that tends to mitigate the degree of the defendant's culpability as to a charged offense, or to mitigate punishment.

d) Information that tends to undermine evidence of the defendant's identity as a perpetrator of a charged crime, such as a non-identification of the defendant by a witness to a charged crime or an identification or other evidence implicating another person in a manner that [*5]tends to cast doubt on the defendant's guilt.

e) Information that could affect in the defendant's favor the ultimate decision on a suppression motion.

• Favorable information shall be disclosed whether or not it is recorded in tangible form, and irrespective of whether the prosecutor credits the information.

• Favorable information must be timely disclosed in accordance with the United States and New York State constitutional standards, and in accordance with the timing provisions of CPL article 245. The prosecutor is reminded that the obligation to disclose is a continuing one. Prosecutors should strive to determine if favorable information exists. The prosecutor shall disclose the information expeditiously upon its receipt and shall not delay disclosure if it is obtained earlier than the time period for disclosure in CPL 245.10(1).

• A protective order may be issued for good cause pursuant to CPL 245.70 with respect to disclosures required under this order.

• Failures to provide disclosure in accordance with CPL Article 245 are subject to the available remedies and sanctions for nondisclosures pursuant to CPL 245.80.

• Only willful and deliberate conduct will constitute a violation of this order or be eligible to result in personal sanctions against a prosecutor.

Defense counsel, having filed a notice of appearance in the above captioned case, is obligated under both the New York State and the United States Constitution to provide effective representation of defendant. Although the following list is not meant to be exhaustive, counsel shall remain cognizant of the obligation to:

a) Confer with the client about the case and keep the client informed about all significant developments in the case;

b) Timely communicate to the client any and all guilty plea offers, and provide reasonable advice about the advantages and disadvantages of such guilty plea offers and about the potential sentencing ranges that would apply in the case;

c) When applicable based upon the client's immigration status, ensure that the client receives competent advice regarding the immigration consequences in the case as required under Padilla v Kentucky, 559 US 356 (2010);

d) Perform a reasonable investigation of both the facts and the law pertinent to the case (including as applicable, e.g., visiting the scene, interviewing witnesses, subpoenaing pertinent materials, consulting experts, inspecting exhibits, reviewing all discovery materials obtained from the prosecution, researching legal issues, etc.), or, if appropriate, make a reasonable professional judgment not to investigate a particular matter;

e) Comply with the requirements of the New York State Rules of Professional Conduct regarding conflicts of interest, and when appropriate, timely notify the court of a possible conflict so that an inquiry may be undertaken or a ruling made;

f) Possess or acquire a reasonable knowledge and familiarity with criminal substantive, procedural and evidentiary law to ensure constitutionally effective representation in the case; and

g) When the statutory requirements necessary to trigger required notice from the defense are met (e.g., a demand, intent to introduce particular evidence, etc.), comply with the statutory notice obligations for the defense as specified in CPL 250.10, 250.20, and 250.30.

The branch of the motion requesting leave to file additional motions is granted to the [*6]extent recognized by CPL § 255.20(3).

This constitutes the decision and order of the court.

The Clerk of the court is directed to distribute copies of this decision and order to the attorney for the defendant and to the District Attorney.