PEOPLE v. PHUNTHUSUNTORN (2022)

The defendant, Luis Phunthusuntorn, has submitted an omnibus motion, dated January 20, 2022, seeking: inspection of the grand jury minutes and dismissal or reduction of the indictment; suppression of evidence; and Sandoval relief. The People's response, dated March 1, 2022, consents to some of the relief sought and opposes other relief. The court decides the motion as follows.

INSPECTION AND DISMISSAL OR REDUCTION

The defendant's motion to inspect the grand jury minutes is granted. The minutes reveal that a quorum of the grand jurors was present during the presentation of evidence and at the time the prosecutor instructed the grand jurors on the law. The indictment substantially conforms to the requirements set forth in CPL § 200.50. Upon inspection of the grand jury minutes and the exhibit, this court found the evidence to be legally insufficient to support all of the counts of the indictment and the instructions were not defective as a matter of law.

The defendant's motion to release the grand jury minutes is partially moot, because the People certified that they turned over the grand jury testimony in their supplemental certificate of compliance dated November 19, 2021. Otherwise, the defendant's motion is denied because the release of the remainder of the grand jury minutes is not necessary to assist this court in determining the defendant's motion to reduce or dismiss the indictment.

Over the course of the grand jury presentation, Jose Martinez was the only witness who described the conduct that gave rise to charges in this case. Mr. Martinez explained that on February 5, 2020, he was returning home with food for his family's evening meal at about 6:00 p.m. As he was walking alone in the area of 41-03 Case Street, two men emerged from behind a wall and robbed him of his wallet and other belongings. He said one of the men kicked him in the stomach causing him to fall to the ground. As he got up, the other man struck him in the shoulder. He said the shorter man put a knife to his throat while the taller man with glasses pointed a pistol at him. Although he got a good look at both men's faces, neither of whom were wearing masks, he could not recall the clothing each man was wearing.

Detective Kevin Medina also testified before the grand jury. He explained that he was assigned to investigate Mr. Martinez's robbery and went to the scene of the robbery on February 21, 2020. That same day he went to a furniture store located at 90-40 Roosevelt Avenue, about one and a half to two blocks from 41-03 Case Street and downloaded a surveillance video from 5:45 to 6:10 p.m. from February 5, 2020. The video surveillance was introduced in evidence. The video focused on the sidewalk in front of 90-40 Roosevelt Avenue and recorded pedestrians walking by the store. Detective Median identified two men, one taller than the other, who appeared on the video at approximately 6:03 p.m. on February 5, 2020, who were connected to his investigation of the robbery of Mr. Martinez. Detective Medina said the taller man had eyeglasses and was wearing a three-quarter length coat with fur on the hood. The shorter man was wearing all black clothing. Detective Medina did not identify either of the two men that were connected to his investigation. Later, on April 29, 2020, he showed the video to Police Officer Ziegler to see if he could identify one or both of the men on the video. Those facts were the only information Detective Medina provided about his investigation into the robbery of Mr. Martinez.

Police Officer Ziegler identified the defendant as the taller of the two men that Detective Medina had connected to the robbery of Mr. Martinez. Police Officer Ziegler said he had multiple contacts with the defendant, including conversations with him. Police Officer Ziegler viewed the video surveillance and identified the defendant as the person wearing eyeglasses and a green jacket and fur hood as he walked along Roosevelt Avenue in front of 90-40 Roosevelt Avenue with a shorter man dressed in all black.

Based on the testimony by Mr. Martinez, all the grand jury knew was that two men, one taller than the other who wore eyeglasses, robbed Mr. Martinez on February 5, 2020, at about 6:00 p.m. near 41-03 Case Street Mr. Martinez could not describe the facial features of the two men, their respective height or weight, their ethnicity or skin color or the clothing the two men were wearing or the color of the clothing they were wearing. Setting aside the fact that the defendant was the subject of the grand jury investigation, which of course, is not evidence of his identity as the robber, the only link between the defendant and the perpetrator was that Detective Medina connected him to the robbery. However, Detective Medina did not detail any of the investigative steps he took that connected the defendant to the robbery of Mr. Martinez. Thus, the evidence before the grand jury established only that two men, one taller than the other, who wore glasses, robbed Mr. Martinez. This description was not so unusual that it is unlikely that it was not common to many people who might be walking together on Roosevelt Avenue near the time and place of the robbery. Accordingly, this evidence was legally insufficient to establish the identity of the defendant as the perpetrator of these crimes.

For all these reasons, the defendant's motion to dismiss the indictment is granted with leave to re-present. In light of this determination, this court need not address the defendant's remaining claims.

ORDER TO COUNSEL

This court issues this order as both a reminder and a directive that counsel uphold their constitutional, statutory and ethical responsibilities in the above-captioned proceeding:

 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 US 83 (1963), Giglio v United States, 405 US 150 (1972), People v Geaslen, 54 NY2d 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 its 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 pursuant to 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 nondisclosures 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 US 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 particular evidence, etc.), comply with the statutory notice obligations for the defense as specified in CPL 250.10, 250.20, and 250.

This constitutes the decision and order of the court.

The Clerk of the court is directed to distribute copies of this decision and order to the attorney for the defendant and to the District Attorney.

Gary F. Miret, J.