People v. Mercado

• Docket Number: Ind No. 70806/2023
• Decision Date: 03 July 2023
• Citation: 2023 NY Slip Op 23195
• Parties: The People of the State of New York v. Devin Mercado PIA ST. LAWRENCE, Defendants.
• Court: New York Supreme Court

2023 NY Slip Op 23195

The People of the State of New York
v.
Devin Mercado PIA ST. LAWRENCE, Defendants.

Ind No. 70806/2023

Supreme Court, Queens County

July 3, 2023

Fern Merenstein, Esq.,

Peter Laumann, Esq.,

The Legal Aid Society, For Pia St. Lawrence

Yong Sam Kim

Assistant District Attorney Office of the Queens District Attorney

David J. Kirschner, J.

By indictment filed March 6, 2023, defendant Devin Mercado is charged with two counts of criminal possession of a weapon in the second degree (PL § 265.03 [1] [b]), both class C violent felonies, criminal possession of a weapon in the third degree (PL § 265.02 [8]), a class D violent felony, two counts of criminal possession of a firearm (PL § 265.01-b [1]), both class E felonies, and other related charges. Defendant Pia St. Lawrence is charged with two counts of criminal possession of a firearm (PL § 265.01-b [1]), both class E felonies.

These charges are based on the allegations that on October 19, 2022, at approximately 8:00 a.m., inside 107-61 77th Street, 2nd Floor, in Queens County, detectives from the New York City Police Department's Financial Crimes Task Force (NYPD FCTF) executed a search warrant issued by U.S. Magistrate Judge Cheryl Pollak on October 8, 2022. Pursuant to its execution, detectives recovered three loaded handguns. From inside defendant Mercado's bedroom, detectives recovered a SCCY Luger 9mm caliber pistol loaded with four live rounds in the magazine and one in the chamber in a satchel next to the bed, two additional fully loaded 10-round capacity magazines, also next to the bed, along with two boxes each containing 45 additional rounds. From inside defendant St. Lawrence's master bedroom, detectives recovered a Kel-Tec PMR 30.22 caliber pistol loaded with 26 live rounds in the magazine (27-round capacity) and one in the chamber in the master bathroom vanity cabinet underneath a shelf. Detectives also recovered articles of U.S. Postal mail bearing defendants' names addressed to 107-61 77th Street, 2nd Floor, in Queens County.

By motion submitted May 16, 2023, defendant St. Lawrence moves for omnibus relief including but not limited to: (1) inspection of the grand jury minutes and/or reduction or dismissal for insufficient evidence or other defects pursuant to CPL §§ 210.20, 210.25, 210.30 and 210.35; (2) an order controverting the search warrant issued on October 8, 2022, by U.S. Magistrate Cheryl Pollak; (3) suppression of property under the Fourth Amendment to the United States Constitution and article I, § 12, of the New York State Constitution, and the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution and article I, § 6, of the New York State Constitution, as improper and fruits of an unlawful arrest; (4) suppression of statement evidence noticed pursuant to CPL § 710.30; (5) preclusion of non-noticed statement/identification evidence pursuant to CPL § 710.30; (6) a pre- trial voluntariness hearing of statements made by defendant to law enforcement and/or civilians intended to be used by People during cross-examination; (7) an order invalidating the People's Certificate of Compliance under CPL §§ 245.50 (1) and 30.30 (5); and (8) reservation of rights to make additional motions as necessary and additional relief that the Court deems just and proper.

Also, by motion submitted May 31, 2023, defendant Mercado moves for omnibus relief including but not limited to: (1) inspection of the grand jury minutes and/or reduction or dismissal for insufficient evidence or other defects pursuant to CPL §§ 210.20, 210.25, 210.30 and 210.35; (2) an order controverting the search warrant issued on October 8, 2022, by U.S. Magistrate Cheryl Pollak and granting a Franks/Alfinito hearing; (3) suppression of property under the Fourth Amendment to the United States Constitution and article I, § 12, of the New York State Constitution, and the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution and article I, § 6, of the New York State Constitution, as improper and fruits of an unlawful arrest; (4) suppression of statement evidence noticed pursuant to CPL § 710.30; (5) granting a Sandoval/Ventimiglia/Luck hearing; (6) an order compelling the People to provide a bill of particulars and demand for discovery; (7) (12) directing the prosecution to comply, timely and fully, with the annexed Brady/Vilardi "specific requests"; and (8) reservation of rights to make additional motions as necessary and additional relief that the Court deems just and proper.

The People: (1) oppose dismissal and or reduction of any charges contained in the indictment; (2) oppose defendants' motion to controvert the search warrant and request for a Franks.Alfinito hearing; (3) oppose defendants' motion to suppress property; (4) oppose defendants' motion to suppress noticed CPL § 710.30 statement evidence; (5) oppose defendant St. Lawrence's motion to preclude non-noticed CPL § 710.30 statement/identification evidence; (6) oppose defendant Mercado's application for Sandoval hearing as premature; (7) oppose defendant Mercado's request for an order compelling the People to provide a bill of particulars and respond to his demand for discovery; (8) state their certificate of compliance disclosing discoverable materials was proper; (9) acknowledge their continuing obligations under Brady and Rosario; and (10) consent to defendant making additional motions within the prescribed statutory period.

After review of the motion papers, the minutes of the proceeding before the grand jury, the indictment and other papers on file with the court, and prior court proceedings, the decision and order of the court on defendants' respective motions is as follows.

I. Grand Jury Proceeding

Defendants' motion to inspect the grand jury minutes is granted to the extent that this Court has conducted an in-camera inspection of them. In so doing, this Court examined the evidence in the light most favorable to the People, which "if unexplained and uncontradicted, would warrant conviction by a petit jury" (People v Gaworecki, 37 N.Y.3d 225 [2021], quoting People v Grant, 17 N.Y.3d 613, 616 [2011]). this Court finds the evidence before the grand jury was both competent and sufficient to support every element of each count in the indictment (see CPL §§ 190.65 [1]; 210.20 [1]; 210.30 [1]; 70.10 [1]; see also People v Jensen, 86 N.Y.2d 248 [1995]; People v Calbud Inc., 49 N.Y.2d 389 [1980]). It is also worth noting that the People enjoy broad discretion in their grand jury presentations and have no obligation to adduce evidence exculpatory or favorable to the defendant (People v Mitchell, 86 N.Y.2d 509 [1993]; People v Lancaster, 69 N.Y.2d 20 [1986]). Thus, there is no basis to dismiss or reduce any count in the indictment. Further, the minutes reflect that the District Attorney's legal instructions to the grand jury on the relevant legal principles were adequate and proper (Calbud, 49 N.Y.2d 389).

This Court is also satisfied that the proceedings were procedurally proper: the grand jury minutes also 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; each witness testified under oath; the District Attorney complied with the applicable rules of evidence in accordance with CPL 190.30; and that no unauthorized person within the meaning of CPL 190.25 was present at any time during the proceeding (People v Sayavong, 83 N.Y.2d 400 [1996]).

Overall, there were no irregularities or defects in the grand jury proceedings rising to the level of impairing the integrity of the proceeding, as would be required for dismissal of the indictment (People v Adessa, 89 N.Y.2d 677 [1997]; People v Huston, 88 N.Y.2d 400 [1996]). As such, defendants' application for release of the grand jury minutes beyond that which the District Attorney has provided pursuant to CPL article 245 is denied. Defendants' remaining arguments relating to the grand jury proceedings have been reviewed and are without merit. Accordingly, the motion to dismiss the indictment is denied.

II. Search Warrant

Defendants moved to controvert the search warrant issued by federal Magistrate Judge Cheryl Pollak of the Eastern District of New York. The People oppose. As a preliminary matter, this...