People v. Jianqiao Lu

People v Jianqiao Lu

2023 NY Slip Op 34734(U)

June 6, 2023

Supreme Court, Westchester County

Docket Number: Ind. No. 23-70515-001

Judge: Robert A. Neary

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.

FILED

AND·

ENTERED

ON t, - ' - 2 oJJ

WESTCHESTER

COUNTY CLERK

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF WESTCHESTER

------------------------------------------------------------------X

THE PEOPLE OF THE STATE OF NEW YORK

DECISION AND ORDER

JIANQIAO LU, Ind. No. 23-70515-001

•, . Defendant.

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."'

NEARY,J.

ti

,..- The defendant, Jianqiao Lu, has been charged with the crimes of Criminal

Possession of a Weapon in the First Degree, Criminal Possession of a Weapon in the Second

Degree. Criminal Possession of a Weapon in the Third Degree (ninety-five counts) and Criminal

Possession of a Firearm (sixteen counts). The defendant has made an omnibus motion which

consists of a Notice of Motion and an Affirmation in support thereof. In response, the People

have filed an Affirmation in Opposition together with a Memorandum of Law. Having read all

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People v. Jianqiao Lu

Indictment No. 23-70515-001

of.the submitted papers and reviewed the court file, this Court makes the following

determination.

1. and 2. MOTION TO DISMISS THE INDICTMENT OR IN THE ALTERNATIVE TO

DISMISS OR REDUCE COUNTS THEREOF ON THE GROUND THAT THE

EVIDENCE BEFORE THE GRAND JURY WAS NOT LEGALLY

SUFFICIENT PURSUANT TO CPL SECTION 210.20(1)(B) and MOTION TO

DISMSIS THE INDICTMENT OR IN THE ALTERNATIVE TO DISMISS OR

REDUCECOUNTSTHEREOFONTHEGROUNDTHATTHEGRAND

JURY PROCEEDING WAS DEFECTIVE WITHIN THE MEANING OF CPL

210.35, U.S. CONST., AMENDS. VI, XIV, NY CONST., ART. 1, SEC. VI

PURSUANT TO CPL SECTION 210.20O)(C)

The defendant's motion to inspect the Grand Jury minutes is granted. Upon an in

camera inspection of the Grand Jury minutes by Court, the motion to dismiss the indictment or

reduce a charged offense in the indictment is denied.

The Court has reviewed the minutes of the proceeding before the Grand Jury.

The Grand Jury was properly instructed (see People v. Calbud, 49 NY2d 389,426 NYS2d 389,

402 NE2d 1140 and People v. Valles, 62 NY2d 36,476 NYS2d 50,464 NE2d 418) and the

evidence presented, if accepted as true would be legally sufficient to establish every element of

the offenses charged. [See CPL §210.30(2)]. In addition, the minutes reveal 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, and that it was instructed that only those grand jurors who

had heard all the evidence could participate in voting on the matter.

The Court does not find that the release of the Grand Jury minutes or certain

portions thereof to the parties was necessary to assist the Court in making this determination.

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People v. Jianqiao Lu

Indictment No. 23-70515-001

3., 6., 7. AND 8. MOTION TO SUPPRESS ANY AND ALL EVIDENCE SEIZED OR

DISCOVERED AS A RESULT OF THE UNLAWFUL POLICE

CONDUCT INCLUDING BUT NOT LIMITED TO ANY AND ALL

PHYSICAL EVIDENCE RECOVERED FROM THE DEFENDANT OR

IN THE ALTERNATIVE FOR A .MAPP/DUNAWAY HEARING

PURSUANT TO CPL SECTION 710.20{1), 710.20(4) AND 710.60,

MOTION TO SUPPRESS ANY AND ALL PHYSCIAL EVIDENCE

SEIZED PURSUANT TO A SEARCH WARRANT BECAUSE NO

PROBABLE CAUSE TO ISSUE THE SEARCH WARRANT EXISTED

OR IN THE ALTERNATIVE FOR A HEARING FOR FINDINGS OF

FACT AND CONCLUSIONS OF LAW UNDER CPL SECTION 710.60,

MOTION TO SUPPRESS ANY AND ALL PHSYCIAL EVIDENCE

SEIZED PURSUANT TO A SEARCH WARRANT BECAUSE THE

SEARCH WARRANT UTILIZED IN THIS CASE WAS '

CONSTITUTIONALLY OVERBROAD OR IN THE ALTERNATIVE

FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW UNDER

CPL SECTION 710.60 and MOTION TO SUPPRESS THE PHYSICAL

EVIDENCE SEIZED PURSAUNT TO A SEARCH WARRANT AS

THE SEIZURES WERE MADE IN VOLATION OF THE

DEFENDANT'S RIGHTS UNDER THE FOURTH AND

FOURTEENTH AMENDMENTS OF THE UNITED STATES

CONSTITUION AND ARTICLE 1, SECTION 12 OF THE NEW YORK

STATE CONSTITUTION PURSUANT TO CPL SECTIONS 710.20

AND 710.60

The defendant's motion to suppress physical evidence obtained pursuant to a

search warrant is denied. The Court has reviewed the affidavit in support of the search warrant

in question and finds that it did provide the signing magistrate with probable cause to believe that

evidence could be located at the location described in the warrant.

The defendant's motion to controvert the search warrant is denied as he has failed

to make the necessary substantial preliminary showing that the warrant was based upon an

affidavit containing false statements made knowingly or intentionally or with reckless disregard

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People v. Jianqiao Lu

Indictment No. 23-70515-001

for the truth. [See Franks v. Delaware, 438 US 154 (1978); People v. Aljinito, 16 NY2d 181

(1965); People v. Katharu, 7 AD3d 403 (2004); People v. Rhodes, 49 AD3d 668 (2008)].

4. MOTION TO SUPPRESS ANY AND ALL TESTIMONY REGARDING ANY

NOTICED STATEMENTS ALLEGEDLY MADE BY THE DEFENDANT, AND ANY

OTHER TANGIBLE OR TESTIMONIAL FRUITS OF THE ILLEGAL SEZIURE AND

SEARCH OF THE DEFENDANT OR IN THE ALTERNATIVE FOR A

HUNTLEYIDUNAWAYHEARING PURSUANT TO CPL SECTIONS 710.20(3) AND

710.60

This branch of the defendant's motion is granted to the extent that a Huntley

hearing shall be held prior to trial to determine whether any statements allegedly made by the

defendant, which have been noticed by the People pursuant to CPL §710.30 (l)(a), were

involuntarily made by the defendant within the meaning of CPL §60.45 (see CPL §710.20(3),

CPL §710.60[3][b]; People v. Weaver, 49 NY2d 1012, 429 NYS2d 399,406 NE2d 1335),

obtained in violation of defendant's Sixth Amendment right to counsel, and/or obtained in

violation of the defendant's Fourth Amendment rights (see Dunaway v. New York, 442 US 200,

99 S. Ct. 2248, 60 LE2d 824).

5. MOTION TO INVALIDATE THE PEOPLE'S PRIOR CERTIFICATE OF

COMPLIANCE AND STATEMENT OF TRIAL READINESS PURSUANT TO CPL

SECTION 245.20

The defendant moves to strike the People's Certificate of Compliance and

Statement of Readiness as illusory, arguing that their filing before all discovery was disclosed

was premature. The motion to strike is denied.

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People v. Jianqiao Lu

Indictment No. 23-70515-001

Perfect compliance is not required by statute before filing a Certificate of

Compliance. If the Legislature intended to require complete disclosure of every single

discoverable item prior to filing a Certificate of Compliance and Statement of Readiness, it

wouid have explicitly stated as such. [see People v. Askin, 68 Misc.3d 372 (County Ct., Nassau

County, April 28, 2020) (rejecting claim that complete disclosure of discovery is required before

filing Certificate of Compliance as "not reasonable' and "clearly not what the Legislature

intended")]. In fact, CPL Article 245 allows for, and mandates, the filing of multiple

Certificates of Compliance and such subsequent filings do not negate or vitiate the prior filing of

the People if done in good faith and after diligent efforts were made to obtain the required

materials. [See People v. Cano, 71 Misc.3d 728, 739 (Sup. Ct., Queens County, December 3,

2020); People v. Percell, 67 Misc.3d 190 (Criminal Ct., New York County, February 10, 2020].

"By allowing for the possibility that the People be deemed ready even when some

discovery is outstanding, the legislature acknowledged that unavoidable delays and unforeseen

hurdles may prevent a diligent prosecutor from complying fully with their discovery obligations,

despite their best efforts to obtain all the relevant material in a timely fashion." [See People v.

Aquino, 72 Misc.3d 518 (Criminal Ct., Kings County, May 7, 2021; see also People v. Weston,

66 Misc.3d 785 (Criminal Ct., Bronx County, February 20, 2020].

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People v. Jianqiao Lu

Indictment No! 23-7.0_~ l 5-::..001__

9. and 10. MOTION FOR A VOLUNTARINESS HEARING TO DETERMINE THE

VOLUNTARINESS OF UNNOTICED STATEMENTS MADE BY THE

DEFENDANT TO POLICE OFFICERS THAT THE PEOPLE INTEND TO USE

ON CROSS-EXAMINATION PURSUANT TO CPL SECTIONS 60.45 AND

710.20(3) and MOTION TO DIRECT THE PEOPLE TO DISCLOSE TO THE

DEFENDANT THE CONTENT OF ALL SUCH STATEMENTS PRIOR TO

THE HOLDING OF THE PRE-TRIAL VOLUNARINESS HEARING

The defendant's motion is denied as speculative an~ premature.

11. MOTION TO PRECLUDE THE PEOPLE FROM INTRODUCING EVIDENCE OF

ANY STATEMENT OR IDENTIFICATION TESTIPMONY AT TRIAL FOR WHICH

PROPER NOTICE HAS NOT BEEN GIVEN PURSUANT TO CPL SECTION

710.30(3)

The defendant's motion is denied as speculative and premature.

12. MOTION TO PRECLUDE AT TRIAL THE USE OF THE DEFENDANT'S PRIOR

CRIMINAL HISTORY OR PRIOR UNCHARGED CIRMINAL, VICIOUS OR

IMMORAL CONDUCT

Immediately prior to commencement of jury selection, the pr~secutor shall, upon

request of the defendant, notify the defendant of any prior criminal act which the People seek to

use in the cross-examination of the defendant as well as all specific instances of the defendant's

prior uncharged criminal, vicious or immoral conduct of which the prosecutor has knowledge

and which the prosecutor intends to use at trial for the purposes of impeaching the credibility of

the defendant. Thereafter, upon the defendant's request, the trial court shall conduct a Sandoval

and/or Ventimiglia hearing prior to the commencement of trial. [See People v. Sandoval, 34

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People v. Jianqiao Lu

Indictment No. 23-70515-001

NY2d 371 (1974); People v. Ventimiglia, 52 NY2d 350 (1981); People v. Molineux, 168 NY 264

(1901)].

13. MOTION TO RESERVE THE DEFENDANT'S RIGHT TO MAKE ADDITIONAL

MOTIONS AS NECESSARY

Upon a proper showing, the Court will entertain appropriate additional motions

based upon grounds of which the defendant could not, with due diligence, have been previously

aware, or which, for other good cause, could not reasonably have been raised in this motion.

[See CPL §255.20(3)].

14. NOTICE OF DEMAND FOR PRESERVATION AND PRODUCTION OF ALL

RADIO OR OTHER RECORDED POLICE COMMUNICATIONS

The defendant's motion for discovery is granted to the extent provided for in

Criminal Procedure Law Article 245. If any items set forth in CPL Article 245 have not been

provided to the defendant pursuant to the Consent Discovery Order in the instant matter, said

items are to be provided forthwith.

The People recognize their continuing duty to disclose exculpatory material at the

earliest possible date. [See Brady v. Maryland, 373 US 83, 83 S Ct. 1194, 10 LE2d 215 and

Giglio v. United States, 405 US 150, 92 S Ct. 763, 31 LE2d 104]. If the People are or become

aware of any material which is arguably exculpatory, but they are not willing to consent to its

disclosure, they are directed to disclose such material to the Court for its in camera inspection

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People v. Jianqiao Lu

Indictment No. 23-70515-001

and determination as to whether such will be disclosed to the defendant.

To any further extent, the application is denied as seeking material or information

beyond the scope of discovery. [See People v. Colavito, 87 NY2d 423, 639 NYS2d 996,663

NE2d 308; Matter of Brown v. Grosso, 285 AD2d 642, 729 NYS2d 492, Iv. denied 97 NY2d

605, 737 NYS2d 52, 762 NE2d 930; Matter of Brown v. Appelman, 241 AD2d 279,672 NYS2d

373; Matter of Catterson v. Jones, 229 AD2d 435, 644 NYS2d 573; Matter of Catterson v. Rohl,

202 AD2d 420,608 NYS2d 696, Iv. denied 83 NY2d 755,613 NYS2d 127,241 NE2d 279].

This constitutes the opinion, decision and order of this Court.

Dated: White Plains, New York

June 6, 2023

ROBERT A. NEARY,

SUPREME COURT JUS

Catalina Blanco Buitrago

Assistant District Attorney

Westchester County

Office of the District Attorney

Richard J. Daronco Courthouse

111 Martin Luther King Blvd.

White Plains, New York 10601

cblancobuitrago@westchesterda.net

Jeremy Sal and, Esq.

Saland Law, P.C.

Attorney for Defendant

52 Duane Street, 7th Floor

New York, New York 10007

j saland@salandlaw.com

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