THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. JONATHAN WHITSETT DEFENDANT APPELLANT (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: In this prosecution arising out of the death of defendant's boyfriend (victim), who was found in the passenger seat of defendant's vehicle with an ultimately fatal gunshot wound to the head after defendant drove them to the home of the victim's parents following a night out, defendant appeals from a judgment convicting him, upon a jury verdict, of murder in the second degree (Penal Law § 125.25 [1]) and criminal possession of a weapon in the second degree (§ 265.03 [3]). We affirm.

Defendant contends that Supreme Court erred in denying his motion seeking to dismiss the indictment on the ground that the grand jury proceeding was defective pursuant to CPL 210.35 (5). We reject that contention. Upon our review of the grand jury minutes, we conclude that “[t]he demanding test for dismissal of the indictment based on prosecutorial misconduct was not met here inasmuch as the People did not engage in an overall pattern of willful and pervasive misconduct” (People v Wilcox, 194 AD3d 1352, 1356 [4th Dept 2021]; see generally People v Thompson, 22 NY3d 687, 699 [2014], rearg denied 23 NY3d 948 [2014]). We have considered defendant's remaining contentions concerning the court's rulings with respect to grand jury presentation, and we conclude that they do not require modification or reversal of the judgment.

Defendant's contention that the evidence is legally insufficient to support the conviction is unpreserved for our review because defendant's general motion for a trial order of dismissal was not “ ‘specifically directed’ at” any alleged shortcoming in the evidence now raised on appeal (People v Gray, 86 NY2d 10, 19 [1995]; see People v Ford, 148 AD3d 1656, 1657 [4th Dept 2017], lv denied 29 NY3d 1079 [2017]). Nevertheless, “ ‘we necessarily review the evidence adduced as to each of the elements of the crimes in the context of our review of defendant's challenge regarding the weight of the evidence’ ” (People v Stepney, 93 AD3d 1297, 1298 [4th Dept 2012], lv denied 19 NY3d 968 [2012]).

Even assuming, arguendo, that an acquittal would not have been unreasonable (see People v Danielson, 9 NY3d 342, 348 [2007]), upon acting, in effect, as a second jury by independently reviewing the evidence in light of the elements of the crimes as charged to the jury (see People v Kancharla, 23 NY3d 294, 302-303 [2014]; People v Delamota, 18 NY3d 107, 116-117 [2011]; Danielson, 9 NY3d at 348-349), we reject defendant's contention that the verdict is against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). The People presented, among other things, witness testimony, defendant's written and video recorded statements to the police, surveillance footage, phone call logs, text messages, and vehicle tracking data establishing that, after a night out at a comedy club during which alcohol was consumed, defendant and the victim—who had been in a relationship for approximately one year—were the only occupants of defendant's vehicle as he proceeded to drive to two liquor stores; that the victim called, spoke to, and may have arranged to meet up with another man for whom the victim appeared to have amorous feelings; that defendant's vehicle thereafter remained stationary on a street for about two minutes; and that defendant then drove to the home of the victim's parents, where defendant ostensibly first noticed that the victim had a bullet wound in his forehead. Although the firearm that caused the victim's fatal injury was never found, the evidence supports the inference that defendant disposed of it during the period between the removal of the victim from defendant's vehicle for transportation to the hospital and defendant's arrival at the nearby hospital approximately 30 minutes later. Defendant was evasive in his statements to the victim's parents about what had occurred, and he later proffered shifting claims that the victim must have been shot by someone else near the comedy club or instead at the second liquor store. Those claims were contradicted by the surveillance footage, phone call logs, and defendant's own further statements. We therefore conclude that “[t]he jury also had ample basis to reject defendant's account of events because his statements to police contained multiple inconsistencies and defied credulity” (People v Gurley, 231 AD3d 558, 558 [1st Dept 2024], lv denied 43 NY3d 1009 [2025]; see generally People v Allen, 183 AD3d 1284, 1286 [4th Dept 2020], affd 36 NY3d 1033 [2021]; People v Leyra, 1 NY2d 199, 208 [1956]). Additionally, prior text messages between defendant and the victim indicated that defendant had been physically abusive toward the victim, and the evidence, including defendant's admission that he attempted to snatch the phone from the victim during his call with the other man when the victim's conversation suggested that the relationship between defendant and the victim was over, showed that defendant was motivated by anger and jealousy (see People v Harris, 162 AD3d 1240, 1242-1243 [3d Dept 2018], lv denied 32 NY3d 937 [2018]; see generally People v Moore, 42 NY2d 421, 428 [1977], cert denied 434 US 987 [1977]).

Based on the foregoing, we conclude that, contrary to defendant's contention, “the element of identity was established by a compelling chain of circumstantial evidence that had no reasonable explanation except that defendant was [the shooter]” (People v Williams, 233 AD3d 1463, 1465 [4th Dept 2024], lv denied 43 NY3d 1012 [2025] [internal quotation marks omitted]). “This is not a case where the evidence established only defendant's mere presence at the scene of the crimes” (People v Hancock, 229 AD3d 1229, 1230-1231 [4th Dept 2024], lv denied 42 NY3d 1020 [2024]). Consequently, upon our review of the evidence, we are satisfied that “ ‘the inference of guilt is the only one that can fairly and reasonably be drawn from the facts, and that the evidence excludes beyond a reasonable doubt every reasonable hypothesis of innocence’ ” (People v Baque, 43 NY3d 26, 30 [2024], quoting People v Sanchez, 61 NY2d 1022, 1024 [1984]).

Defendant further contends that he was deprived of a fair trial based on improper remarks from the prosecutor during cross-examination of him and during summation. Defendant failed to preserve his contention for our review with respect to many of the instances of alleged misconduct (see CPL 470.05 [2]; People v Gonzales, 145 AD3d 1432, 1433-1434 [4th Dept 2016], lv denied 29 NY3d 1079 [2017]). In any event, we reject defendant's contention. “Reversal based on prosecutorial misconduct is mandated only when the conduct [complained of] has caused such substantial prejudice to the defendant that [they have] been denied due process of law” (People v Kerce, 140 AD3d 1659, 1660 [4th Dept 2016], lv denied 28 NY3d 1028 [2016] [internal quotation marks omitted]; see People v Bubis, 204 AD3d 1492, 1494-1495 [4th Dept 2022], lv denied 38 NY3d 1149 [2022]). Here, although many of the challenged comments “would have been better left unsaid,” we conclude that “the record as a whole fails to disclose that the prosecutor engaged in a flagrant and pervasive pattern of prosecutorial misconduct so as to deprive defendant of a fair trial” (People v Quinones, 174 AD3d 1514, 1516 [4th Dept 2019], lv denied 34 NY3d 983 [2019] [internal quotation marks omitted]).

Contrary to defendant's remaining contentions, we conclude that the court did not abuse its discretion in qualifying a detective as an expert in the extraction and interpretation of data from vehicle infotainment systems (see People v Fraser, 162 AD3d 480, 481 [1st Dept 2018], lv denied 32 NY3d 1111 [2018]), that defendant received meaningful representation (see generally People v Baldi, 54 NY2d 137, 147 [1981]), and that the sentence is not unduly harsh or severe.

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court