The opinion of the court was delivered by: Lester B. Adler, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
By notice of motion dated September 15, 2008, defendant moves for an order dismissing the indictment and/or barring a retrial of the instant indictment. In response, the People have filed an affirmation in opposition with accompanying memorandum of law dated November 21, 2008. Defendant filed a reply memorandum of law with the Court on December 18, 2008.*fn1
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged by Indictment No. 97-1782 with two counts of murder in the second degree (both intentional and depraved indifference murder), and two counts of tampering with physical evidence in connection with the1994 stabbing death of Louis Balancio outside of the Strike Zone club in the City of Yonkers, New York.*fn2 Following a jury trial in the Supreme Court, Westchester County (Cowhey, J.), on October 25, 2000, defendant was acquitted of the intentional murder count but was convicted of the one count of depraved indifference murder and two counts of tampering with physical evidence. On January 26, 2001, defendant was sentenced to a period of incarceration with a minimum of 25 years and a maximum of life for the murder conviction, and two indeterminate periods of incarceration of one and one-third to four years for each count of tampering with evidence. The Appellate Division, Second Department affirmed the conviction on October 7, 2002 (People v. DiSimone, 298 AD2d 399, 751 NYS2d 403),*fn3 and defendant's application for leave to appeal to the Court of Appeals was denied on February 3, 2003 (People v. DiSimone, 99 NY2d 613, 757 NYS2d 824, 787 NE2d 1170).
On April 23, 2004, defendant filed a petition pursuant to 28 U.S.C. §2254 seeking a federal writ of habeas corpus on the ground, inter alia, that New York's depraved indifference murder statute is unconstitutionally vague. While the federal matter was pending, on October 19, 2004, the New York State Court of Appeals rendered its decision in People v. Payne, (3 NY3d 266, 786 NYS2d 116, 819 NE2d 634, rearg. denied 3 NY3d 767, 788 NYS2d 670, 821 NE2d 975). In the majority opinion authored by Justice Rosenblatt, the court stated that "depraved indifference murder may not be properly charged in the overwhelming majority of homicides that are prosecuted in New York," and that the use of a weapon may never qualify as depraved indifference murder where there is a "manifest intent to kill" (Id. at 270-271). By interlocutory order dated January 12, 2005, the United States District Court for the Southern District of New York (Brieant, J.), stayed the proceeding for 30 days in order to permit the defendant the opportunity to raise a claim that Payne should apply retroactively to his case in the state court.
Pursuant to the district court's order, on February 10, 2005, defendant filed a motion to vacate the judgment of conviction pursuant CPL §440.10 in the Westchester County Court. This motion was denied by the state court in a Decision and Order dated June 6, 2005 on the ground, inter alia, that a legal sufficiency claim can be reviewed only by direct appeal and, therefore, defendant's insufficiency claim was procedurally barred.
The district court, having concluded that defendant had now exhausted his state remedies, granted the writ insofar as it pertained to the conviction for depraved indifference murder (DiSimone v. Phillips, U.S. Dist. Ct., S.D.N.Y, 04 Civ. 3128, Brieant, J., 2005).*fn4 In its Memorandum and Order dated November 30, 2005, the district court concluded that "the rule of Payne will be treated by the New York Court of Appeals as retroactive in application to a case on collateral review of a conviction which was final when Payne was decided." Accordingly, the court vacated the conviction on the ground that under Payne the trial evidence could not "support the element of the crime of Depraved Indifference Murder."
In a decision dated August 22, 2006, the United States Second Circuit Court of Appeals reversed the district court's holding on the ground that a "void-for-vagueness" challenge in the state court, standing alone, does not preserve an insufficiency claim for purposes of federal habeas corpus (DiSimone v. Phillips, 461 F.3d 181, 189 ). However, the Second Circuit agreed with defendant that the information contained in the affidavit of Luvic Gjonaj regarding a statement made by Nick Djonovic that he stabbed the victim two times before defendant allegedly stabbed the victim constituted Brady material. The Second Circuit further found that there was a "reasonable probability" that had such exculpatory information been disclosed to the defense, "the case would have been different," and that if neither the defendant nor his attorney knew of, or had constructive knowledge of, the information then it had not been disclosed "in sufficient time to afford the defense an opportunity for use" (Id. at 196). Since the Second Circuit was unable, based on the record before it, to determine the extent to which defendant or his attorney knew or should have known about the information, the court remanded the matter to the district court for further fact finding on this question (Id. at 198).
On remand, the People conceded that a Brady violation had occurred, withdrew any previously filed opposition to the issuance of a conditional writ of habeas corpus, and agreed that defendant should be granted a new trial in the state court. In its Memorandum and Order dated February 5, 2007, the district court, while concluding that the Brady violations were "egregious," denied defendant's application for a conditional writ of habeas corpus based upon the violation (DiSimone v. Phillips, U.S. Dist. Ct., S.D.NY, 04 Civ. 3128, Brieant, J., 2007). In denying defendant's application on this ground, the district court stated that "[i]t is not a function of this Court to punish the prosecutors for their misconduct at petitioner's first trial by preventing a retrial which would otherwise be allowed, but rather to see that Justice is done in the case. To the extent that Petitioner's counsel argue that it is necessary to send a message' to prosecutors in New York that they cannot fail to disclose Brady material * * * this is not a proper purpose for the court." The district court did, however, vacate the conviction, dismiss the indictment and bar the People from retrying the defendant on the ground that defendant could not be convicted of depraved indifference murder on the evidence since any retrial "would have to be conducted consistently with New York case law now in effect."
The People appealed, and the Second Circuit vacated the district court's order insofar as it barred a retrial (DiSimone v. Phillips, 518 F.3d 124 ). In its decision dated March 4, 2008, the Second Circuit found that while the district court properly ordered that the conviction be vacated, the court exceeded its authority by barring retrial since "[t]he question whether retrial is in fact improper under the constitutional principles of insufficiency of the evidence or double jeopardy must be determined in the first instance by the state courts" (Id. at 127). In vacating this portion of the district court's order, the Second Circuit expressed no opinion as to whether defendant could be retried in the state court.
On May 8, 2008, the Second Circuit issued its mandate affirming that portion of the district court's decision which vacated defendant's conviction for depraved indifference murder. The People now seek to retry the defendant on that count of the indictment. In response, the defendant moves for an order dismissing the indictment: 1) on the ground that the evidence before the Grand Jury was not legally sufficient to establish the offense of depraved indifference murder under the Court of Appeals' holding in Payne; 2) on the ground that a retrial would violate the prohibition against double jeopardy; and 3) in the interest of justice. Defendant also moves for an order barring a retrial: 1) on the ground of collateral estoppel; 2) on the ground that the Brady violations which occurred at his prior trial deprived him of due process; and 3) on the ground of prosecutorial misconduct.
I. MOTION TO DISMISS INDICTMENT ON LEGAL INSUFFICIENCY GROUNDS
Defendant moves pursuant to CPL §210.30 and §210.20(1)(b) to inspect the Grand Jury minutes and, upon a review thereof, to dismiss the indictment on the ground that the evidence adduced before the Grand Jury was legally insufficient to establish the offense of depraved indifference murder under current New York case law. In support of his motion, defendant relies upon evidence presented at trial which established that the victim was stabbed 13 times, and that ten of these "thrusts" struck vital organs. He argues that this evidence is insufficient to establish the crime of depraved indifference murder.
Prior to the commencement of his trial in 2000, defendant filed certain pre-trial omnibus motions which included, inter alia, a motion to inspect the Grand Jury minutes and to dismiss the indictment. In a Decision and Order dated March 31, 2000, the Supreme Court, Westchester County granted defendant's motion to inspect the Grand Jury minutes, but denied his motion to dismiss the indictment on the ground that "the competent evidence presented [to the Grand Jury] was legally sufficient to establish a prima facie case, which if unexplained, would warrant a conviction."
In his notice of motion dated September 15, 2008, defendant again moves to inspect the Grand Jury minutes and to dismiss the indictment on the grounds of legal insufficiency of the evidence. There is no statutory authority for reinspection of Grand Jury minutes (People v. Guin, 243 AD2d 649, 650, 663 NYS2d 621, appeal denied 91 NY2d 834, 667 NYS2d 688, 690 NE2d 497) and, as a general rule, a court should not "reconsider, disturb or overrule an order in the same action of another court of co-ordinate jurisdiction" (Matter of Dondi v. Jones, 40 NY2d 8,15, 386 NYS2d 4, 351 NE2d 650; People v. Bradley, 247 AD2d 929, 668 NYS2d 788, appeal denied 91 NY2d 940, 671 NYS2d 719, 694 NE2d 888). This doctrine, known as the law of the case, while not an absolute mandate, may only be vitiated in "extraordinary circumstances" (Guin, 243 AD2d at 650; Matter of Spota v. Bress, 136 AD2d 584, 524 NYS2d 44; People v. Finley, 104 AD2d 450, 479 NYS2d 63, ...