People v. Jianqiao Lu

People v Jianqiao Lu 2023 NY Slip Op 34735(U) November 2, 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 I/- J - 20,2.J WESTCHESTER COUNTY CLERK

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER ·------------------------ ·-----------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK

.: against - . DECISION AND ORDER

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

Defendant. ------------------------------------------------. -----------------X NEARY,J.

The following constitutes the opinion, decision and order of the Court:

The defendant has been indicted for the crimes of Criminal Possession of a

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

Criminal Possession of a Weapon in the Third Degree. It is alleged that on or about October 25, . . . 2021, the defendant did posses~ numerous firearms and large capacity ammunition feeding

devices. , .

FILED" NOV ~ ;! 2023 ,. l TIMOTHV ~- 11.,vNI COUNTY ClEHK COUNTY OF WES'fCHESTER

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People v. Jianqiao Lu Indictment No. 23-70515-001

The defendant claiming to be aggrieved by the improper or unlawful acquisition

of evidence has moved to suppress a statement allegedly made by him on October 25, 2021 at

12:26 P.M. on the ground that the statement was involuntary and made without the benefit of the

Miranda Warnings.

The People must establish the voluntariness of the statement attributed to the ·

defendant beyond a reasonable doubt before it is admissible at trial.

By decision of this Court dated June 6; 2023, pre-trial Huntley and

Sandoval/Ventimiglia hearings were ordered. On November 1, 2023 a hearing was held to

address the Huntley/Dunaway·issues. The Sandoval/Ventimiglia hearing was adjourned until

immediately before jury selection.

At the hearing, the People called as a witness Hastings-on-Hudson Lieutenant .

Robert Gagliardi. The Court finds the testimony of the People's witness to be candid, plausible

and fully credible. The defense presented no• witnesses and offered no evidence. The People's

·exhibits included a search warrant and. supporting affidavit relating to the defendant, his .

residence and several vehicles. This Court makes the following Findings of Facts and

Conclusions of Law:

FINDINGS OF FACTS

On the afternoon of October 25, 2021, New York Police Department detectives

and officers from the Hastings-on-Hudson Police Department executed a valid search warrant

(People's Exhibit 1) at 9 Holly Place in the Westchester Village of Hastings.

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People v. Jianqiao Lu Indictment No. 23-70515-001

The warrant named the defendant, his residence and several vehicles as the person

and places to be searched.

In preparation for the execution of the warrant and awaiting the arrival of the New

York Police Department personnel, Hastings-on-Hudson Police then Sergeant Ro.bert Gagliardi

set up a physical surveillance on the above-mentioned two family premises.

At about 12:20 P.M. on that afternoon, ~ergeant Gagliardi observed the defendant

exit the 9 Holly Place building and took him into custody. Upon securing the defendant,

Sergeant Gagliardi asked the defendant if there was anyone else in his apartment and the

defendant responded, in substance, that there was no one in the residence except his two (2) cats.

CONCLUSIONS OF LAW

Dunaway Issue

The probable cause standard is a nonmechanical concept that deals with the

factual and practical considerations of everyday life on which prudent and reasonable men, not

legal technicians, act. [See Maryland v. Pringle, 54 US 366, 370]. What is required is simply a

reasonable ground for belief of guilt. It is a probability not a certainty or even a prima facie

case. [See lllinois v. Gates, 462 US 213,235]. A police officer may draw inferences based upon

his own experiences and training to determine whether probable cause exists. He may also rely

on information provided to him from brother officers whether supplied orally or in writing. [See

People v. Ketcham, 93 NY2d 416,419; People v. Mitchell, 124 AD3d 912,914].

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People v. Jianqiao Lu . Indictment No. 23-70515-001

- The fellow officer rule applies in this case since Sergeant_ Gagliardi took the

defendant into custody based upon the written reports of, and conversations with, Officer John

Chilelli, a member of the New York Police Department Intelligence Unit, who provided detailed

information about the defendant's apparent illegal activities involving credit card fraud and

likely illegal possession of firearms. In addition to discussing the evidence of the defendant's

suspicious conduct with Officer Chilelli, Sergeant Gagliardi reviewed the search warrant and

affidavit (People Exhibit 1) issued on October 18, 2021 by New York City Criminal Court Judge

Paul McDonnell upon a showing of reasonable cause to believe evidence of a crime would be

found on the defendant and within his residence and vehicle(s) .

. Huntley Issue

The statement attributed to the defendant that there were only his two (2) cats in

the apartment does not"seem, on its face, to be inculpatory. Nor does it appear to the Court that it

was prompted by any interrogation_ or its functional equivalent requiring administration of the

Miranda rights.

In determining the voluntariness of a statement, the Court must look at all the . .

· re~evaht factors, and all facts and circumstances must be weighted and considered. ·[See People

v. Carbonaro, 48 Misc.2d 115, aff'd21 NY2d 271, re-argument denied21 NY2d 1040]. Further,

-the Court is entit_kd to ·view the evidence in the light most favorable to the People. [See People

v. Huber, 144 AD2d 583].

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People v.- Jianqiao Lu Indictment No. 23-70515-001

Miranda warnings are required when an individual is in custody and being

interrogated. In this case, while the defendant .could be considered in . custody, his statement was

not prompted by a question amounting to interrogation. The Court views Sergeant Gagliardi' s

. question regarding any . . . persons within the premises, as a good faith effort to clarify an evolving

situation and provide an assessment of what officers executing a "No-Knock" search warrant

involving, among other things, suspected firearms possession, might encounter. Sergeant

Gagliardi's sole focus at that point appears to be the safety of his fellow officers rather than a

ruse to extract an admission from the defendant. [See People v. Flores, 153 AD3d 1186; People

v. Williams, 97 AD3d 769].

Therefore, the defendant's motion to suppress the noticed statement is denied in

its entirety.

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

Dated: White Plains, New York November 2, 2023

~~ti~ . ROBERT A. NEARY SUPREME COURT JUSTICE

Catalina Blanco Buitrago Annmarie Stepancic Assistant District Attorneys Westchester County Office of the District Attorney Richard J. Daronco Courthouse 111 Martin Luther King Blvd. White Plains, New York 10601

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People v. Jianqiao Lu Indictment No. 23-70515-001

Jianqiao Lu Inmate No. 265008 Por Se Defendant Westchester County Jail. PO Box 10 Valhalla, New York 10595

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