Opinion
Index No. 70528-21 Indictment No. 70528-21 Legacy No. 21-0386
06-27-2023
THE PEOPLE OF THE STATE OF NEW YORK v. JONATHAN PLANAS, Defendant
Hon. Miriam E. Rocah District Attorney, Westchester County Dr. Martin Luther King, Jr. Boulevard BY:· ADA Marissa Morra-Wynn Jeffrey P. Chartier, Esq. Attorney for Defendant
Unpublished Opinion
Hon. Miriam E. Rocah District Attorney, Westchester County Dr. Martin Luther King, Jr. Boulevard BY:· ADA Marissa Morra-Wynn
Jeffrey P. Chartier, Esq. Attorney for Defendant
DECISION & ORDER
JAMES A. MCCARTY, JUDGE
Defendant, Jonathan Planas, having been indicted for one count of murder in the second degree (Penal Law §125.25) and four counts of criminal possession of a weapon in the second degree (Penal Law §265.03) has filed an omnibus motion which consists of a Notice of Motion, an Affirmation in Support, and a Memorandum of Law. In response, the People have filed an Affirmation in Opposition together with a Memorandum of Law. Upon consideration of these papers, the stenographic transcript of the grand jury minutes, this Court disposes of the omnibus motion as follows:
1 -2. MOTION TO INSPECT AND THE GRAND JURY MINUTES AND TO DISMISS AND/OR REDUCE THE INDICTMENT
Defendant moves pursuant to CPL §§210.20(1)(b) and (c) to dismiss the indictment, or counts thereof, on the grounds that the evidence before the Grand Jury was legally insufficient and that the Grand Jury proceeding was defective within the meaning of CPL §210.35. The Court has reviewed the minutes of the proceedings before the Grand Jury. Pursuant to CPL §190.65(1), an indictment must be supported by legally sufficient evidence which establishes that the defendant committed the offenses charged. Legally sufficient evidence is competent evidence which, if accepted as true, would establish each and every element of the offense charged and the defendant's commission thereof (CPL § 70.10[1]); People v Jennings, 69 N.Y.2d 103 [1986]). "In the context of a grand jury - proceeding, legal sufficiency means prima facie proof of the crimes charged, not proof beyond a reasonable doubt." People v Bello, 92 N.Y.2d 523 (1998); People v Ackies, 79 A.D.3d 1050 [2d Dept 2010], In rendering a determination, "[t]he reviewing court's inquiry is limited to whether the facts, if proven, and the inferences that logically flow from those facts supply proof of each element of the charged crimes and whether the grand jury could rationally have drawn the inference of guilt" (Bello, supra, quoting People v Boampong, 57 A.D.3d 794 [2d Dept 2008] (internal quotations omitted)). A review of the minutes reveals that the evidence presented, if accepted as true, would be legally sufficient to establish every element of each offense charged (see, CPL §210.30[2]).
With respect to Defendant's claim that the Grand Jury proceeding was defective within the meaning of CPL§210.35, a review of the minutes supports a finding that a quorum of the grand jurors was present during the presentation of evidence and at the time the district attorney instructed the Grand Jury on the law, that the grand jurors who voted to indict heard all the "essential and critical evidence" (see, People v Collier, 72 N.Y.2d 298 [1988]; People v Julius, 300 AD 2d 167 [1st Dept 2002], Iv den'd, 99 N.Y.2d 655 [2003]). The Grand Jury was properly instructed (see, People v Calbud, 49 N.Y.2d 389 [1980]; and People v. Valles, 62 N.Y.2d 36 [1984]).
This court finds no merit to Defendant's contention that evidence was improperly placed before the Grand Jury. Pursuant to Criminal Procedure Law §190.30, the rules of evidence which otherwise apply at trial are relaxed. Further, issues relating to admissibility of evidence, including whether it has been lawfully obtained, are properly adjudicated subsequent to indictment at a suppression hearing (People v. Blasé, 112 A.D.2d 943, 944 [2d Dept. 1985]; In re Grand Jury Proceeding, 89 A.D.2d 605 [2d Dept. 1982]; see also, People v. McIntosh, 167 A.D.2d 429 [2d Dept. 1990]). Moreover, Defendant's contention that video evidence was introduced to the Grand Jury absent authentication is refuted by testimonial evidence.
Finally, the court does not find the release of any portions of the Grand Jury minutes that have not already been disclosed to counsel pursuant to CPL Article 245 necessary to assist the court. However, in accordance with standard practice, the People shall maintain a sealed copy of the minutes of the Grand Jury proceeding should same be required for purposes of an appeal.
3. Motion to Suppress Physical Evidence
The defense moves for suppression of physical evidence on grounds that it was seized in the absence of probable cause to arrest the defendant. With respect to property recovered from the Defendant's person, on consent of the People, a Dunaway/Mapp hearing shall be held. With respect to the Defendant's application to suppress the 2017 Mercedes-Benz vehicle, a Mapp hearing shall be conducted to permit the court to consider whether the Defendant had a reasonable expectation of privacy in the vehicle, which was unoccupied and parked in a public lot when seized and, if so, whether the police action of lifting a cover that had been placed over the outside of the car to view the license plate thereof constitutes an unlawful search within the meaning of the law. As to the Apple iPhone 11 Pro Max recovered, which was recovered from the ground in the vicinity of 19 Lawrence Street, a Mapp hearing shall be conducted to permit the court to consider whether the Defendant abandoned this item by leaving it unattended on a public street. If the court finds the seizure of any items was unlawful, the court shall analyze whether any property for which a search warrant was issued constitutes the "fruit of the poisonous tree" (see, Wong Sun v. US, 371 U.S. 471 [1963]).
Nevertheless, Defendant's motion to controvert the various search warrants executed in connection with this indictment is denied. The facts presented within the four-corners of the affidavits provided each signing magistrate with sufficient information to support a reasonable belief that an offense had been committed and that evidence of a crime might be found in: residences at 4 Schroeder Street, Apt. 463, and 476 Hawthorne Avenue, Apt. 10N, an Apple iPhone Pro Max 11, a gray 2017 Mercedes Benz bearing Florida registration NWTU35 and the infotainment system therein, a blue Motorola cellular telephone in a black case, a white cellular telephone with a broken screen, a black thumb drive, and through the release of subscriber information, historical call date, and cell site usage relating to assigned telephone number (914) 530-1503 (see, People v McRay, 51 N.Y.2d 594, 602 [1980]).
In accordance with applicable law, in reviewing the search warrants at issue, this court afforded great deference to the signing magistrates' determinations, each of which found the existence of probable cause, and reviewed each in accordance with every day experience, affording all reasonable inferences based on consideration of the complete picture of the attendant facts and circumstances, rather than n a hyper-technical manner (People v Johnson, 66 N.Y.2d 398 [1985]; People v. Oden, 36 N.Y.2d 382 [1975] People v. Robinson, 68 N.Y.2d 541 [1986]; People v Hanlon, 36 N.Y.2d 549 [1975]; People v Bigelow, 66 N.Y.2d 417 [1985]).
Upon this court's review, Defendant is not entitled to a hearing with respect to his application to controvert any of the search warrants to the extent the defense has not set forth a preliminary and substantial showing that a false statement was included in the affidavit knowingly, intentionally or with reckless disregard for the truth (Franks v Delaware, 438 U.S. 154 [1978]; People v Alfinito, 16 N.Y.2d 181 [1965]; People v Panaro, 167 A.D.2d 951 [4th Dept. 1990]).
4. Motion to Suppress Identification Evidence
Defendant's motion to suppress identification testimony is granted to the extent that, on consent of the People, the court shall conduct a pre-trial Wade hearing to determine whether law enforcement improperly employed unduly suggestive identification procedures which gave rise to a substantial risk of an irreparably mistaken identifications of the Defendant.
At issue are four discrete identification procedures during which law enforcement allegedly showed a witness a single photograph of the Defendant. The first concerns law enforcement's showing of a single photograph to a parking lot attendee or lessee whereas the remaining three identification procedures arise in connection with police witnesses having viewed a single photograph in preparation for and in conjunction with their testimony before the grand jury (US v Wade, 388 U.S. 218 [1967]; People v Rodriguez, 79 N.Y.2d 445, 452 [1992]).
5. Motion to Preclude Use of Statements
Defendant's motion to preclude use by the People of any statement he allegedly made to a law enforcement officer or an agent thereof for which the People did not provide notice in accordance with CPL §710.30 is granted to the limited extent the People shall be prohibited from using any statement during their case-in-chief of which they did not give notice for which they lack the ability to establish good cause for late notice..
However, it bears comment that preclusion shall not apply to any statements of which Defendant had actual notice (People v. O'Doherty, 70 N.Y.2d 479, 522 N.Y.S.2d 498, 517 N.E.2d 213; People v. Drummond, 188 A.D.2d 312, 591 N.Y.S.2d 9; People v. Rigo, 273 A.D.2d 258, 709 N.Y.S.2d 571). In addition, the People shall not be precluded from using statements, if any exist, that consist of pedigree information, the res gestae of a charged crime, which were made spontaneously within the meaning of the law, or which otherwise fall outside the ambit of CPL §710.30 (see, People v. Rodney, 85 N.Y.2d 289; People v. Copes, 200 A.D.2d 680, 606 N.Y.S.2d 751).
6. Motion for a Bill of Particulars
This aspect of Defendant's motion is denied in its entirety. Defendant did not timely move for a Bill of Particulars (CPL §200.95[2], [3] and [6]). Moreover, and importantly, by virtue of the People having complied with the Discovery strictures, Defendant has ample information available upon which to prepare his defense (see, Discovery Disclosure Index).
7. Motion for Further Discovery and Inspection
The People are directed to comply with the requirements of Article 245 of the Criminal Procedure Law. To the extent, Defendant has made demands which exceed the broad scope of this Article, his application is denied in its entirety.
8. Preservation of Rosario Material
The People are directed, within the confines of the law, to retain and disclose as required, all materials which constitute Rosario.
9. Motion for Sandoval/Ventimiglia/Molineaux Hearing
Consistent with the law, the People consent to a Sandoval hearing being conducted (34 N.Y.2d 371 [1974]). In preparation for such hearing, the People shall notify Defendant not less than fifteen days prior to trial of all specific instances of Defendant's uncharged misconduct and criminal acts of which the People have knowledge and which they intend to use at trial for the purpose of attempting to impeach Defendant's. credibility or as substantive proof of any material element of any crime charged in the within indictment At the hearing, Defendant shall bear the burden to inform the Court as to those acts of prior misconduct or criminal acts which he contends may affect him unfairly in the event he chooses to testify as a witness on his own behalf (People v. Malphurs, 111 A.D.2d 266 [2d Dept. 1985]).
Defendant's request for a hearing pursuant to either Ventimiglia/Molineaux\s premature to the extent the People are yet to indicate an intention to utilize any acts of misconduct or prior criminal offenses during their case-in-chief.
10. Motion to Disclose Brady Material
Defendant's motion is granted to the extent that the People are directed to comply with their continuing obligation to disclose exculpatory evidence that is within their possession (Brady v. Maryland, 373 U.S. 83 [1963]; People v. Fein, 18 N.Y.2d 162 [1996]). In the event the People become aware of information that is arguably Brady but which they are not willing to voluntarily disclose, the People are directed to seek a court ruling with respect to disclosure forthwith.
11. Motion Reserving Time for Additional Motions
This application is summarily denied. In the event Defendant believes it necessary 8 to move for relief not requested herein, such application shall be brought by Order to Show Cause (CPL §255.20).
12. Order to Counsel in Criminal Cases
The court, pursuant to an Administrative Order and in furtherance of the fair administration of justice, issues this order as both a reminder and a directive that counsel uphold their constitutional, statutory and ethical responsibilities in the above-captioned proceedings.
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 U.S. 83 (1963), Giglio v United States, 405 U.S. 150 (1972), People v Geaslen, 54 N.Y.2d 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 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 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, and 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 non-disclosures 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.
To Defense Counsel:
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 U.S. 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 the evidence, etc.), comply with the statutory notice obligations for the defense as specified in CPL 250.10, 250.20, and 250.30.
To Both Counsel:
In order to facilitate compliance with Article 245 discovery, and to reduce or streamline litigation of any disputes regarding discovery, the Court directs that the prosecutor and defense counsel diligently confer to attempt to reach an accommodation as to any disputes concerning discovery prior to seeking a ruling from the Court.
The foregoing constitutes the opinion, decision, and order of this Court.