STATE OF NEW YO CALEDONIA VILLAGE COURT COUNTY OF LIVINGSTON

The People of the State of New York

Against

PHILIP L. STEWART

NOTICE OF OMNIBUS

MOTIONS

PLEASE TAKE NOTICE, that upon the supporting depositions and other papers, plead-ings and proceedings heretofore filed and had herein, and upon the annexed movin papers, the defendant, Philip L. Stewart, by his attorneys, Dibble & Miller, P.C., on the 19` 11 day of De-cember, 2011, at 6:00 o'clock in the afternoon of that day or as soon thereafter as counsel may be heard, in Caledonia Village Court, 3095 Main Street, Caledonia, New York 14423, will move this Court for the following relief:

1) Dismissal for Violation of Speedy Trial Rights: For an Order dismissing all remaining charges for violation of the defendants speedy trial rights pursuant to Criminal Procedure Law (CPL) § 30.30.

2) Change of Venue: For an Order changing the venue of the matter pursuant to CPL § 230.20.

3) Recusal: For consideration of recusal.

4) Statement Suppression/Preclusion: For an Order pursuant to the Criminal Procedure Law suppressing, precluding the People from offering any any admissions, confessions, conversa-tions, statements or waivers alleged to have been made by the defendant.

5) Tangible Property Suppression—Mapp Hearing: For an Order pursuant to the Criminal Procedure Law directing the suppression of any seized property taken from the person or possession of the defendant herein, or any co-defendant, in connection with said arrest, or, in the alternative, granting a hearing, pre-trial, to determine the admissibility of said seized property.

6) Hearings: Hearings if the Court does not grant the relief requested at the time of these hear-ings.

7) Discovery: Pursuant to CPL Article 240, for an Order directing the District Attorney to de-liver to the defendant's attorneys copies of any arrest warrants, search warrants and/or court orders pertaining to the charges herein, together with any affidavits, depositions or other forms of application or support thereof, as well as any inventories and returns.

a) Preserved Evidence: For an Order directing the District Attorney to disclose to defense counsel whether any statements, conversations or acts were preserved electronically or mechanically, such as, but not limited to, by tape, wire or other recording, videotape or photographs.

1 Filename 'Gwdntserver DocumentsngmmVay Documents'S STEWPLCR--Notice of Omnibus Motions doc

Locator 11, 1 Zit I '13044-GMIW/2//

itiovew5 (diria0- DEN/P7) Z4/ Zpdg -- lam- OF 1 DCA) ; r --prieug 50- - 11 r,v6f-ed Re-sek---poi T t4i a TftuJE 4-1 2012 ?AN .1tr

^YHIRIT A EXHIBIT B rPYHIRIT C EXHIBIT' D

Airc

aelifte&THMeningrihriterfilidan an a ciff*iew any tape or other recording, photographs or preservation of any

s tements, conservation or acts of the defendant, and to obtain copies thereof. For an Order directing a pre-trial audibility hearing with regard to any items specified above.

•••

8) Bill of Particulars: For an Order pursuant to Section 200.90 of the CPL directing the Dis-trict Attorney of Wayne County to file and serve a Bill of Particulars in the above entitled ac-tion as demanded in the attached Affirmation.

9) Sandoval: For a pre-trial Order restraining and enjoining the District Attorney from cross-examining or interrogating the defendant concerning her prior criminal record.

10)Pursuant to CPL § 240.43, requiring the prosecutor to disclose any past uncharged acts that will be used at trial to impeach the defendant.

1 1) Brady: For an Order directing the District Attorney to furnish the defendant, within the time period to be specified by the Court, all evidence or information of every form and na-ture which may tend to exculpate the defendant either by an indication of his innocence or by intentional impeachment of a People's witness within the purview of Brady v. Mary-land, 373 U.S. 83 and People v. Rosario, 9 N.Y.2d 286.

12)Transcripts of Hearings: Pursuant to People v. Sanders, 31 NY2d 463, 341 NYS2d 305 (1973), requiring that any hearings granted in this case be held at least twenty days prior to the commencement of the trial in order to allow sufficient time for the transcription of the minutes.

13)Renewal: Permitting the renewal of all motions.

For such other and further relief as to this Court may seem just and proper.

Dated: December 12, 2011, Rochester, New York. it/Litd / /l(

G. Micha Miller, Esq. Dibble & Miller, P.C. Attorneys for Defendant 55 Canterbury Road Rochester, New York 14607 (585) 271-1500

To: Joshua J. Tonra, ADA District Attorney's Office 2 Court Street Geneseo, New York 14454

- 2 - Filename GwdntserverDocuments' gmnr.My Documents , T STEWPLCR—Notice or Omnibus Motions doe Locator 1211 2'1 1,713044-GMM/i2J/

=Y1141RIT A ( evulorr D vvutortrr

STATE OF NEW YORK CALEDONIA VILLAGE COURT COUNTY OF LIVINGSTON

The People of the State of New York

Against

PHILIP L. STEWART

AFFIRMATION

SUPPORTING OMNIBUS

MOTIONS

G. Michael Miller, an attorney duly licensed in the State of New York, affirms the following under the penalties of perjury:

1) I represent the defendant in the above-captioned matter.

2) I make this affirmation in support of the relief sought in the annexed Notice of Omnibus Motions.

3) Upon information and belief, the defendant, Philip L. Stewart, was arrested and is now charged with Menacing 2 nd and two counts of Disorderly Conduct.

4) The defendant was originally arraigned on November 6, 2009, and entered a plea of "not guilty" to said charges.

5) The charges resulted in an indictment.

a) The felony charges were dismissed on motion of the defendant.

b) The Hon. Robert B. Wiggins, by Order dated October 4, 2010, transferred the remaining charges to the Justice Court, Village of Caledonia (see Order at Exhibit A).

c) A trial was held on the remaining charges on February 14 th through February 17 th, 2011, with the Caledonia Village Court sitting in the Village of Geneseo.

d) That trial resulted in convictions, but the convictions were reversed and the matter remanded to the Caledonia Village Court for retrial of the menacing 2 nd charge and two counts of disorderly conduct (NOT the harassment 2" charge) by the Hon. Robert B. Wiggins' Order dated August 2, 2011 (see Order and Stipulation at Exhibit B).

6) The sources of the information and grounds for my belief reflected in this affirmation are conversations between myself and the defendant, examination of the various papers filed in connection with this proceeding, examination of the discovery previously provided by the prosecution, review of the Court's file, and my independent investigation of this matter.

Filename: ••''Gwdntserver`Documenisnigmm . My Documents \ S`STEWPLCR—Affirmation Supporting Omnibus Motions doc

Locator I 2:10i I 11,D044-GALW/14//

7 ) The felt n% char- ,es resulting from the indictment vi ere dismissed on motion of the and the lion. Robert 13 Wiggins, by Order dated October 4, 2010, transferred the remaining charges to the Justice Court, Village of Caledonia (see Order at Exhibit A).

8) Criminal Procedure Law (CPL) § 210.20, "Motion to dismiss or reduce indictment", governed the procedure after Judge Wiggins transferred the remaining charges to the Caledonia Village Court.

9) CPL § 210.20(6) states:

6. The effectiveness of an order reducing a count or counts of an indictment or dismissing an indictment and directing the filing of a prosecutor's information or dismissing a count or counts of an indictment charging murder in the first degree shall be stayed for thirty days following the entry of such order unless such stay is otherwise waived by the people. On or before the conclusion of such thirty-day period, the people shall exercise one of the following options: I

I (a) Accept the court's order by filing a reduced indictment, by dismissing the indictment and filing a prosecutor's information, or by filing an indictment containing any count or counts remaining after dismissal of the count or counts charging murder in the first degree, as appropriate;

(b) Resubmit the subject count or counts to the same or a different grand jury within thirty days of the entry of the order or such additional time as the court may permit upon a showing of good cause; provided, however, that if in such case an order is again entered with respect to such count or counts pursuant to subdivision one-a of this section, such count or counts may not again be submitted to a grand jury. Where the people exercise this option, the effectiveness of the order further shall be stayed pending a determination by the grand jury and the filing of a new indictment, if voted, charging the resubmitted count or counts;

(c) Appeal the order pursuant to subdivision one or one-a of section 450.20. Where the people exercise this option, the effectiveness of the order further shall be stayed in accordance with the provisions of subdivision two of section 460.40.

If the people fail to exercise one of the foregoing options, the court's order shall take effect and the people shall comply with paragraph (a) of this subdivision.

10) The People did not resubmit or appeal, so the People were required to comply with CPL § 210.20(6)(a) by filing a prosecutor's information.

11) The People were required to file a prosecutor's information for the remaining misdemeanor and two violations. See, e.g. People v. Jackson, 87 NY2d 782, in which an indicted charge was reduced from Class D Felony to a Class A Misdemeanor. The Jackson Court determined the People needed to file a reduced indictment to proceed.

- 2 - Filename GvnintserverDocuments`gmm \My Documents \ S'iSTEWPLCR—Affirmation Supporting Omnibus Motions doc

Locator. I2 10i 1 I6D044-GNEW/14//

FYHIRIT A r 1(1-111:11T R

LII GP lir rt-111111111111111111111111111 ••■■ •••• •••■••••■••

I

12) Here, the People have not filed a prosecutors information or any curati e accusatory instru-ment.

13) CPL § 210.20(6) requires that a prosecutor's information be filed in a local criminal court when the court orders felony counts dismissed and only misdemeanors or petty offenses re-main.

14) The Caledonia Village Court was divested of jurisdiction over the case when Mr. Stewart was indicted.

15) Judge Wiggins Order at Exhibit A transferred the case back to the Caledonia Village Court, but the People had to file a new accusatory instrument for the Caledonia Village Court to have trial jurisdiction.

a) The Caledonia Village Court did not have jurisdiction over the existing accusatory in-strument, the indictment.

b) Judge Wiggins did not return all the non-felony charges to the Caledonia Village Court, only the menacing 2 nd charge and two counts of disorderly conduct, but not the harass-ment 2"d charge.

c) The People had to file a prosecutor's information for the remaining charges. Otherwise, there was (and still is) no accusatory instrument before the Caledonia Village Court.

16) The lack of any prosecutor's information or any curative accusatory instrument filed in the Caledonia Village Court is a bar to any announcement by the People of their readiness for trial.

17) For speedy trial purposes, "ready for trial" comprises two elements, (1) either statement of readiness by the prosecutor in open court, transcribed by a stenographer, or recorded by the clerk or a written notice of readiness sent by the prosecutor to both defense counsel and the appropriate court clerk and (2) the People must in fact be ready to proceed at the time they declare readiness. People v. Chavis, 1998, 91 N.Y.2d 500.

18) People cannot be ready to proceed with trial, for purposes of speedy trial statute, prior to fil-ing of indictment or information. People v. Walsh, 1997, 176 Misc.2d 144.

19) To be "ready for trial" the People must file an accusatory instrument sufficient to confer trial jurisdiction upon the court and must communicate their readiness to the court on the record. People v. Byrd, 1984, 124 Misc.2d 987.

20) Prosecution lacked valid accusatory instrument upon which defendant could be tried as of date of arraignment, and statement of readiness for trial at arraignment was thus a nullity for purposes of speedy trial statute, where complaint had not been converted to an information, and defendant had not waived prosecution by information. People v. Brooks, 1999, 180 Misc.2d 987.

- 3 - Filename: ','GwdntserverDoeuments\ gmrn ,My Documents\ S‘STEWPLCR--Affirmation Supporting Omnibus Motions.doc

Locator' 12:10/1 laiD044-GMM1114//

rviatal--711111111111111111110T I EXHIBIT A FYHIRIT R v—vesitry 11"r 0%

21 The People were required under s r a ta to reannounce eir rea mess or trial within 90 days [in this case before the Caledonia Village Court, within six months] after or-der of appellate court reversing defendant's conviction, and granting new trial, became final. even though they had previously announced their readiness for trial on the indictment, and proceeded to trial. People v. Blancero, 2001, 187 Misc.2d 832, affirmed 289 A.D.2d 501.

22) Another possible pitfall is where after the People announce readiness, the indictment is dis-missed with leave to represent and a new indictment is filed. In such case the People should not overlook the need to announce readiness after the new filing. People v. Cortes, 80 N.Y.2d 201 (1992). While recognizing that the People are not required to "declare their readiness re-peatedly throughout the pendency of a criminal action," the Court nevertheless opined that "the dismissal of an indictment and the filing of a new one represents such a substantial break in the proceeding that a new communication of readiness is needed to eliminate guesswork" (at p. 214).

23) The rationale of the Cortes Court should also apply where the indictment is replaced by a prosecutor's information as a result of a motion to dismiss or reduce (CPL § 210.20).

24) In order for the People effectively to announce ready for trial, they must both communicate their readiness and in fact be ready for trial. People v. Kendzia, 64 N.Y.2d 331, 337 (1985).

25) The People's statement of readiness for trial is valid when they have removed all legal im- pediments to the commencement of their case. People v. England, 84 N.Y.2d 1, 4, (1994).

26) It is well settled that to be ready, the prosecution must have filed a valid accusatory instru-ment sufficient to confer on the court jurisdiction to try the defendant. People v. Gomez, 30 Misc3d 643, 651 (NY Sup. 2010).

27) Therefore, the People's recitation of readiness for trial in their Kendzia letter dated October 13, 2010 (at Exhibit C) was illusory because the People were not ready for trial because there was no accusatory instrument filed in the Caledonia Village Court. There is still no accusa-tory instrument filed in the Caledonia Village Court in this case!

a) The Letter at Exhibit C does serve as an acknowledgment by the People of their obliga-tion to reannounce their readiness for trial because of the procedural "hoops" this case has "jumped through".

b) The Letter at Exhibit C was illusory because a condition precedent to announcing readi-ness, a valid accusatory instrument filed with the Caledonia Village Court, did not (and still does not) exist.

28) Judge Wiggins Order returning the remaining charges to the Caledonia Village Court was dated October 1, 2010.

29) CPL § 210.20(6) gives the People a thirty day stay.

30) The People's obligation to file a prosecutors information, and the time speedy trial time be-gan running was on or about November 1, 2010.

- 4 —

Filename. ' ,Gwdntserver ,Documents , gmnf.My Documents\ S`.STEWPLCR—Atlirmation Supporting Omnibus Motions.doc Locator 12/10,11//13044-GNEW/14,7

16G

2 'date, our hUndred and six (406) days have passed since the People were required to an- nounce their readiness for trial (November 1, 2010 to December 12, 2011).

33) The speedy trial time ended on or about April 1, 2011.

34) The People's letter at Exhibit C was illusory and wholly ineffective to announce their readi-ness for trial because the People could not be ready for trial because there was no accusatory instrument filed at that time, and there is still no accusatory instrument filed.

35) The charges against Mr. Stewart must be dismissed pursuant to CPL § 30.30.

B. CHANGE OF VENUE

36) Upon information and belief, Mr. Stewart's prosecution has become notorious in the Village of Caledonia area.

37) The local newspaper, The Livingston County Times, published articles on Mr. Stewart's conviction in the February, 2011, edition after the February, 2011, trial, and in the "Police and Courts" section of the newspaper's April, 2011 edition (copies attached as Exhibit D).

38) The fact that Mr. Stewart was convicted is widely known in the community, and would prejudice his ability to receive a fair and impartial trial.

39) The Court should order a change of venue for the trial pursuant to CPL § 230.20.

C. RECUSAL

40) The defendant asks the Court to consider recusing itself.

41) The defendant has recounted instances that occurred in prior proceedings in this matter (that affirmant did not witness because the defendant was represented by other counsel at those times) that makes the defendant question his ability to obtain a fair and impartial trial.

42) It is the defense's understanding that the Court is a layperson.

43) The defendant is asking the Court, in its discretion, to examine his personal conscience to determine if any bias or prejudgment exists that may compromise the defendant's ability to obtain a fair and impartial trial.

D. PRECLUSION AND SUPPRESSION OF EVIDENCE-STATEMENTS

44) The defendant moves to preclude from use directly or indirectly as evidence against the accused at trial all statements, whether verbal or written, attributed to the accused that are not set forth in a CPL 710.30 notice served on the accused within 15 days of the arraignment on the indictment herein, on the grounds that there is no good cause for the late service of notice of any additional statements.

- 5 - Filename. .`Gwdntserver Documents , grninNy Documents S STEWPLCR—Affirmation Supporting Omnibus Motions doe

Locator 12110/ I 1 ,713044-GNLM//14//

es,, I •

47) Because of the confusing procedural history of this matter, the defense is preserving its right to preclusion or suppression of statements while acknowledging that a Huntley Hearing was held before Judge Wiggins on May 17, 2010.

E. SUPPRESSION OF PHYSICAL EVIDENCE

48) Upon information and belief, the People may intend to offer at trial property seized from the defendant by law enforcement personnel.

49) Upon information and belief, such property was seized in violation of the Fourth Amendment of the United States Constitution and Constitution and laws of New York.

50) If the People do intend to offer property seized from the defendant or codefendants by law enforcement personnel, the defendant requests a Mapp Hearing to determine the admissibility of said evidence.

F. HEARINGS

51) Should the Court not grant any of the relief requested above at the time these motions are argued, I request that the Court schedule hearings relating to the same so that the defendant may have an opportunity to produce evidence in support of the relief requested.

52) More specifically, the defendant requests the following hearings:

a) Huntley;

b) Mapp;

c) Sandoval.

53) Pursuant to People v. Sanders, 31 N.Y.2d 463, 341 N.Y.S.2d 305, 293 N.E.2d 555 (1973), I request that any hearing ordered and had in this case, with the exception of a Sandoval hearing, be held at least twenty (20) days prior to the commencement of trial in order to allow sufficient time for the transcription of the minutes of such hearings.

G. DISCOVERY AND INSPECTION

54) Pursuant to CPL 240.40 the defendant requests that the Court direct the People to provide the defendant with the following property which is, or with the exercise of due diligence could come, within the possession or control of the prosecutor:

a) Any written, recorded or oral or observed statement of the defendant (and of any codefendant or co-conspirator, whether charged or not), including all notes, summaries, or memoranda concerning such statements made by any law enforcement agent or by any person acting under the direction of, or in cooperation with any law enforcement agent;

- 6 - Filename. ','GwrintserverDomtments ,gmm,,My Documents.STEWPLCR--Affirmation Supporting Omnibus Motions.doc

Locator 1110111. D044-GNINV/ 14/1

Ilk EXHIBIT A EXHIBIT B f PYWIRIT a (EXHIBIT —13