COURTOF'fHE, SI'ATE, OIT NE,\X/ YORK

SUPRE,ME
COUNfY OIr NE\)f YORI(: PAI{I. 59

THE PEOPLE, OF THE STATE OF NEW YORK DI]CISION AND ORDI]R

ON DI]FE,NDANT'S MOTION
,I'O
- agatnst E,XCLUDE, E,VIDE,NCE,
AND ITOR AN
DONALD J. TRUMP, ADJOURNN{ITNT ON THE,
GROUNDS OF
l)cfcndant. PRE,SIDE,NTIAL IMMUNITY

Ind. No. 71543/2023

HON. JLrAN M. MIIRCIL,\N A.f .S.C.:

On April 4,2023, the Defendant was arraigned bcfote this Court on an indictment charging
him rvith 34 counts of Falsifying Business Records in the Ilirst I)cgree, in violation of Pcnal Law $

115.10.

On May 1,2023, thc Defendant frled a notice of rcmoval to federal court. People u. Trunp,SD
NY No. 23-LY-03773 Q\KII), ECI" No. 1. In opposrng thc People's motion to remand the casc back
to New York County Supreme Court, Defendant, while arguing that hc "...has more than adequately
demonsrtated a fedctal defense entiding hrm to Supremacy Clausc immunity," made clear in that same

section that he was fully aware of the defense of presidenual immunig. Id. at ECF No. 34 at pgs. 21-

23.

On October 5,2023, Defendant moved to dismiss the indictment in Unind Sutet' u. Trump,US
Dist Ct, DDC No. 23-CR-257 GSC), where he is charged with four criminal counts stemming ftom
actions he allegedly engaged in to intetfere with the2020 presidential election. United States u.'framp,

L'lS Dist Ct, DDC 23 CR 257, GSC) ECF No. 74.In his motion, he argued among othcr things, that
the federal charges should be dismissed on the grounds of presidcntral immunity, that thc "scope of
criminal immunity includes all actions that fall within the 'outer pcrimeter' of the President's official
duties," and that "making public statements, including tweets, about matters of national concern is an
official action that lies at the heart of Presidenual duties." Id. atpgs.21,28. The motion was denied
by Judge Tanya S. Chutkan on i)ecember 7, 2023. Id. at F'CF No. 171. Defendant appealed on
December 7 ,2023. On February 6,2024, after further briefing by the parties, the Unitecl States Court
of Appeals, District of Columbia Oircuit, upheld.)udge Chutkan's decision. L.'nited Stale.s n l'ranp,91,
F4th 1173 pC Ct 20241. On February 28,2024, the Supreme Court grantcd certiorai in the matter of
Trump u. United States, --Sct-- 2024 WL 8331,84 120241, Defendant's N1emo ar pg. 2.

On February 22,2024,Defendant trled his motions in limine in the instant matter. Attached to
the motions was the Affirmation of Todd Blanche, (hereinafter "Blanche MIL Aftrrmation"), which
contained numerous exhibits. Exhibit 5 containcd statements purpotedly made by Defendant, which

the People intend to inuoduce at trial. Dcfcndant sought to preclude the "94 statements allegedly
made bv President T'rump in vadous f<rrms of media. . . " N[otions in /inine fte reinaftct "Defendant's
MIL"). Defendant's N'IIL at pgs. 40-43. On licbruary 22,2024, the Pcople also filed ther motions zz

limine Qtereinaftet "People's MIL"), wherein the People argued that this Court should "permit the
inttoduction of evidence regardi.ng the defendant's attempts to dissuadc witnesses from cooperating
with law enforcement because such evidence shows defendant's consciousness of guilt and

corroborates his intent." People's N{IL at pg. 50. 'Ihe People specifically noted that "defendant has
targeted Cohen and Daniels on social media and in othct public statcments rvith persistent, harassing,

and denigrating comments." Id. at pg. 51.

On February 29,2024,Defendant tesponded to the Peoplc's motions in linine (hereinafter

"Defendant's MIL Opposition"). In his response, Defendant argued that the People "must pre-clear"
the evidence of a purported pressure campaign against witnesscs with the Court pnor to its
introduction at ffial. Defendant's N{IL Opposition atpg.29. Speciflrcallv, l)cfendant argued that the
"People need to idenufv the rvitness(es) in cluestion, the substance of the proffered testimony, and
any related exhibits they seek to offer. Id.
On Match 7, 2024, I)efendant filed the instant motion to exclude evidence and for an

adjoutnment based on presidential immunity Qrereinafter "Defendant's Memo"). At the time

Defendant's Mcmo was filed, trial r.vas set to commence on March 25,2024. On March 1.3,2024,the
People flled ther motion in opposiuon (hcrcinafter "People's Opposition.").

CoNrnNrroNS oF THE PARTTES

Defendant seeks (1) "an adjoutnment of the trial pending review of the scope of the

presidential immunity doctdne rn Trunp u. U nited .flatel' and (2) prcclusion of "evidence of President
Trump's official acts at trial based on prcscntial immunity." Defendant argucs that he is (1) immune
from state prosecution based on official acts, (2) the instant mattcr should be adjourned in light of the
recent action bv the Supremc Court of the [-]nitcd States of America grantrng rcrliorai, and (3) that the

People should be precluded from offedng evidence of Ptesident T'rump's official acts. Specifically, the
Defendant argues that he is entided to immuniry "for acts withrn the 'outcr pcrimeter' of his official
responsibilitv." Defendant's Nlotion at pg. 20, citing to l\ixon u. b-itry4erald,457 LIS 371 (1,982).
The People cite to Criminal Procedur:c Law ("CPL') S 255.20(3) and argue that Defendant's
motion must be denied as untimely. 1'hey further argue that l)efendant's claim of ptesidential
immunity is "not a basis for precludrng evidencc that is othenvise relevant and admissible." People's
Opposition at pg. 5. 'I'he People also argue that the Defendant provides no authority to support his
claim that immunity can "Dteclude the inttoduction of evidencc of official presidenual acts in a

criminal proceeding) even if that evidence is othcrwise televant and admissible for charges to which

no immunity attaches." Id. at 9. Finally, the People note that although Defendant argues that
presidential immuniry applies to potcntial Molineux evidence, he does nol argue that the defense applies

to the chatged conduct at the heart of the instant Indictment. //.

DrscussroN
For the follorr,-ing reasclns, Defendant's motion is DENIED as untimely.
"Except as otherwise expressly provided by law, whether the defendant is represented by
counsel or elects to proceed pto se, all pre-tdal motions shall be sen,cd or hled u,ithin forry-tivc davs

after arraignment and bcfore cornmencement of trial, or within such addruonal ume as the couft may
fix upon applicauon of the defendant made prior to the entry of judgment." CPL S 255.20(1). The
court must entertain and decide on its merits an appropriate pre-trial motion based upon "gtounds of
u'hich the defendant could not, with due drligence, have previouslv been au,are, or which, for other
good cause, could not reasonably have been raiscd" within the period specified b,v CPL S 255.20(1).

CPL $ 255.20(3). r\ court may summarily deny a motion that is fried latc. William C. Donnino, Ptactice
Commentary,l\{clCnne),'s Cons Laws of NY, CPL S 255.20

A coutt's decision r-in the issue of timeliness is discretionarl'. .\'ee People u. Marte .197 AD3d 411

[1st l)ept 2021).In rcvicrving the cxcuses proffered by the l)efendant for the timrng of his modon,
this Court Frnds that thcv arc inadequate and not convincing.ld. at 414. Defendantappears to justify
the timing of the filing'on the basis of two events: (1) the filing of the People's modons in limine on
February 22,2024, which rndicated ther intcnt to offer at trial evrdence that Defendant engaged in an

alleged "pressure campaign" against certain witnesses and (2) the ficbruary 28,2024, decision by the

United States Supreme Cout to grant Defendant certiorad in Trunp u. U niteC Slales, --Sct-- 2024 WL
833184 [2024], where the issue r-,f presidential immuniq, wrll presumably be decided. Defendant's
Memo at pgs. 1-2.
 -fhosc
two reasons, even when consider:cd in tandem, as l)efcrrdant does, fail to explain why
Defendant waited long past the statutory period allotted b1' CPL \\ 255.20. Thc Defcndant had ample
notice that the People were in possession of, and tntended to use, the various statements allegedly
made by Defendant on social media, in public, and in various interviews. He was also well aware that

the defense of presidential immunity, even if unsuccessful, might be available to him. Fot example,

and as discusscd more fullv below, Defendant full1, btiefcd the issue of presidential immunitv in his

motion to dismiss thc mattcr of Linited Stale.r u.'l'ntrup, L,'S Dist Ct, t)DC 23 CR 257, (l'SC) ftereinafter
"lredetal Insurrection N'Iatter") on October 5,2023.IIe also demonstrated awarcness that the defense
was availablc to him when he attempted to remove the instant matter to federal court on May 4,2023,

in People u. Trump, SD NY No. 23-CV-03773 (AKf!. Nonetheless, l)efendant chosc not to raise the

defense of ptesidenual immunity until well past the 45-day period provided by statute. He also did not

mise it in his omnibus motion, in his motions in liruine or in his response to the People's mottons in

limine. Defendant's decision is unjustiFrable and renders this motion untimelv. Irurther, and as an aside,

the fact that thc Defendant u,aited until a mere 17 days prior to thc schcdulcd trial date of March 25,
2024, t<> file the motion, raises real questions about the sincerity and actual purpose of the motion,
After all, Defendant had already briefed the same issue in fcderal court and he was in possession of,
and aware that, the People irrtended to offer the relevant evidence at trial that entire trme. The
circumstances, viewcd as a wholc, test this Court's cledulih,.
'l'urning spccifically to Dcfendant's availabiliq, r:f the defensc of presidenual immuniq'. 'I'he

procedural history o[ the instant matter, together with the procedurai historl of the Federal
Insurrcction N'(atter, leave no doubt that Defcndant was aware that the dcfensc, cven if unsuccessful,
was available to him well bcfore N{arch 7 .2024, when this motion u'as hled. On October 5,2023, the
Defendant moved to distniss his ljederal Insurection N{atter on the grounds of presidential immunity.
Llnited S un.r u. 'frnmP,2023 WL 8359E33, 23cr257 TSC IICF No. 74. In his motion papers therein, he
,

specifically atgued that that his actions as president were on the "outcl' perimcter," that is, "thc lau,
provides absolute immunrty 'for acts within thc 'outcr penmcter' of [the President's] oificial
tesponsibrli\'." Id. at pg. 1, titittgto ilixon u. b-itryerald,457 LfS 731,75611982). 'I'he "outer perimeter"
of Presidential duties, thc: Dcfendant argued, "encircles a vast swath of tcrritory, because the scope of
the President's duty and authodfv in our constitutional system is uniqucly and extraordrnarily broad."

Id. atpg. 22. Ife also took the position that ". . . maiking public statements on matrers of public concern

especially u'herc they relatc to a core fedcral functi<>n such as the admrnistration of a federal clection

unquestionably falls w-ithin the scope of the Prcsident's -Ihose

- ofFrcial dudes." Id. at pg. 28.
arguments are substantially similar to arguments he presents flow - five months later. See Defendant's
Memo at pgs. 3, 20, 22. Defendant's awareness of the availability of the defense is further
demonsttated in atguments he has made in this very procecding. Iror cxarnplc, when he attempted to
remove this case to federal court, Defendant argucd that he "is immunc frc>m statc prosccution for
actions taken as a result oi his role as president." People u. 'l-ntmp,23cv03773 (AKH) at ECF No. 34 at

pg. 2l.Nonetheless, Defendant strategicall), *nit"d unul March 7,2024, to raise the defense.
T,lrning next to De fendant's knowledge of the People's intcntion to introduce er,'idcnce of his
alleged "pressure canrpalgn" against ccrtain rvitnesscs. This Court Frnds that f)efendant was indeed

and had notice of the People's intent, rvell bcfore he fllcd this motion, and he has failed to
^ware
ciemonstratc good cause for the late filing. IJe has also failed to persuade this Court that it should

consider the motion in the intetest of justice. People u. Roberts, T6 Misc3d 448 [Sup Ct, NY County
20221. The People notc in ther opposition, that the alleged "pressure campaign" was expressly
tefered to and discussed rn the statement of fhcts which accompanied the Indictmcnt in this matter,
aswell as in the grand juq,minutcs, all of which were provided to Defendant in and around April and
May 2023.. People's Opposition at pg. 3. 'I'hat Defendant had notice of the statements cannot possib\,

be disputed. ["or examole, in the instant motion, Dcfcndant referenccs three t.weets that the People

interrd to introduce at trial as Mo/ineux evidence. Jee Defcndant's Nlemo at pg. 3. Howevcr, the three
tweets (among r>ther statenrcnts) u,'ere referenced in Defendartt's lutlt ex'hibit attachcd to his motions

in limine F.xhibit 5 of Bianche IvIII. Affirmation. Indeed, Defendant argued rn his motions in iimine.
that the \re{r same statemcnts should be "precluded ... until [the People have] established theit
relevance and admissitriliq' outside the ptesencc of the jury." f)cfcndant's llcmo in Support of his

N{odons irt ltmine at pgs. 4(l-43. Rather than make the argument, as l)efendant does now, that the
admissions should be precluded on the grounds of prcsidential immunig,, Defendant argucd then that
thc statt:ments should be prccluded on relevance and evidentiaq, grounds.

CoNcr-usroN
This Court finds that Defendant had mydad oppor:tunitres to raise the claim of presidential
immunity well before March 7, 2024. Defcndant could have done so in his omnibus motions on
September 29,2023, which rverc filed a mere six days before hc briefed the same issue in his Federal

Insurrectron Matter and.scveral months afterhe brought his motion for temoval to federal court on
I\'Iay 4, 2023. Further, the l)ef-crtclant could havc expanded his argurnent on this topic in his motions

in limine or in his opposition to the Pcr,ple's motions in limine - but hc drd not.
Lasdy, having addressed the issue of timeliness and turning to Defendant's motion for
preclusion of the People's evidence of the allegcd "pressure caml>aign," the (-orrrt reminds Defendant

that it already ruled on tiris issue in its Decision and Order on Defendant's lMotiorrs in Limine at pgs.
7-8

Defendant's moticn is DENIED in its entirety as untimely. 'Ihe Court dcclines to consider
q'hetiret the doctrine of presidcntiai immunrty precludes thc inuoduction of cvidence of putpotted

l'he forcgoing consitutes the Dccision and Order of this Court.

April 3, ?024
Ncu''t'.rtk, Nerv York

fR O 3 eozt ActingJusticc clf the Suprcrnc Court

Judge of the Cor.rrt of Clairns

EE T HEN${E{

I As the People have noted in

their Memo, the Defendant does not appear to raise a clainr of presrcieniral inrmunity
as to the underlying facts that make out the charges of Falsifying Busrness Records in the Firs: Degree. Therclfore,
his argument here is not the same as his argunrent in the Federal Insu,rection Matte!'where tne issue o[ "absoiute
immunitv from federal criminal liability" was presented in the context of Urr; r.,nderiying ci.iminai conduct that
serves as the basis for that indictment.