People v Ponce

[*1] People v Ponce 2012 NY Slip Op 50024(U) Decided on January 12, 2012 County Court, Sullivan County LaBuda, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 12, 2012
County Court, Sullivan County

The People of the State of New York, Plaintiff,

against

Marlaina Ponce, Defendant.



140-2011



Appearances:

James R. Farrell, Sullivan County District Attorney

Sullivan County Courthouse

414 Broadway

Monticello, NY 12701

By: Robert L. Zangla, ADA

Orseck Law Offices, PLLC

Attorneys for Defendant

1924 State Route 52, PO Box 469

Liberty, NY 12754

By: Gerald Orseck, Esq.

Frank J. LaBuda, J.

Before the Court is defendant's motion to dismiss the indictment which preliminarily involves the People's untimely submission of opposing papers. The People were given an opportunity to submit papers in opposition to defendant's rejection of their opposing papers. For the reasons set forth in this Decision and Order, the Court finds that the People's opposing papers were untimely served and filed, and that the defendant's motion to dismiss the indictment should be granted. That motion would be granted even if the Court were to consider the People's untimely opposing papers.

The People's Untimely Submission of Opposing Papers

On December 13, 2011, the defendant's motion to dismiss was personally served upon the District Attorney's office. On December 14, 2011, the defendant served the District Attorney with a supplemental affirmation by overnight mail which was received by the District Attorney on December 15, 2011. The return date of the Motion was noticed for December 27, 2011. The People's opposing papers were personally served upon defendant's counsel in front of the Clerk's office on December 28, 2011, and were filed a few minutes thereafter at approximately 9:30 a.m. [*2]

The opposing papers, which consisted of a 4-1/2 page affirmation of Assistant District Attorney Robert L. Zangla, do not seek leave to serve and file such papers out of time, and after the return date of the motion.

In any event, defendant's counsel and the Assistant District Attorney appeared before me later that morning. I found that the People's papers were served out of time and would not be considered by the Court. The Assistant District Attorney requested an opportunity to submit papers to the Court for its reconsideration of such ruling. The Court granted the People such opportunity and Mr. Zangla submitted a letter dated December 28, 2011. The defendant responded by letter dated December 30, 2011. After considering these papers, the Court adheres to its rejection of the People's papers. Indeed, the People's letter of December 28, 2011 reinforces the Court's original determination.

To begin with, CPLR 2214(b) provides that "[a] notice of motion and supporting papers be served at least eight days before the time at which the motion is noticed to be heard." The subject motion was noticed to be heard on December 27, 2011, and service of such motion papers was completed on December 15, 2011, upon the People's receipt of defendant's supplemental affirmation. Thus, the motion papers were served 12 days prior to the return date.

22 NYCRR 202.8(a) provides that "[a]ll motion papers shall be filed with the court on or before the return date." The People's papers were served and filed after the return date which, in and of itself, renders such papers untimely.

Furthermore, 22 NYCRR 202.8(e)(2) provides:

"(2). Absent agreement by the parties, a request by any party for an adjournment shall be submitted in writing, upon notice to the other party, to the assigned judge on or before the return date. (emph supp). The Court will notify the requesting party whether the adjournment has been granted."

Here, the People did not request an extension of time or adjournment until after the return date, and until after their untimely papers were rejected. The People's letter of December 28, 2011, quite apart from being submitted after the return date, fails to show good cause for any extension of time. In fact, the Court finds that the People's proffered excuse is patently frivolous.[FN1]

Here, as was the case in Klecar v. Hayward, 156 AD2d 899 (3rd Dept 1989), "the papers . . . attempted to submit to the court contained no valid explanation as to why they were late . . . . Without a valid excuse, [such] late papers could not be properly considered . . . ."

Defendant's Motion to Dismiss

Marlaina Ponce, then 19 years of age, a high school graduate, life-long resident of Sullivan County, accepted to begin nursing school at Manatee College of Sarasota, was arrested on April 27, 2011. She had no prior involvement with the law not even a traffic ticket. She had always been employed. On June 15, 2011, she was indicted and charged with three burglaries, each of which [*3]involved damage to the burglarized premises. She was charged with multiple counts of possession of stolen property.

After what is accurately described by her attorney as a case with "a history of sordid police conduct and prosecutorial bungling," a "probable cause" hearing and a Huntley hearing were noticed for October 21, 2011. On that date, in open Court, the Assistant District Attorney and Ponce's attorney advised the Court they were discussing a resolution of this case.

A short time later, the Court inquired of the Assistant District Attorney:

"And have your discussions with Mr. Orseck been helpful?

MR. ZANGLA: It has Judge."

The Court then adjourned for lunch. At 12:40 p.m., defendant Ponce and her attorney met in the Court's conference room where Ponce prepared a handwritten signed statement as to her proposed testimony. Significantly, that statement included the following:

"We just met with Mr. Zangla and we all agreed that on trial I would testify truthfully that at the conclusion of the trial, all charges against me would be dismissed. My testimony will be as follows . . . ."

Ms. Ponce then outlines her prospective testimony in detail, including the fact that on the night in question

"Richie [defendant Richard Grillo] came back to the house. He was soaked & wet, excited & was carrying a large burgundy pillowcase that was filled with something which I later learned was a large amount of jewelry."

That statement was handed to Mr. Zangla in Court.

The Court stated on the record:

"THE COURT: Firstly, with respect to the Huntley issue and in fact the case against Ms. Ponce it appears the parties have worked out a stipulation and a disposition that if Ms. Ponce testifies at trial in accordance with her own handwritten statement provided to the defense today through the auspices of her attorney, that the People would then move to dismiss the charges against Ms. Ponce. Am I correct in that? Putting it together?

MR. ORSECK: Yes.

MR. ZANGLE: The only thing I would add is there are some issues that may be arising further. A further writing done in addition to the two-page statement she's given me. And as soon as that is done we will turn that over to the defendants.

THE COURT: Okay. Wonderful. All right, so that more or less takes care of Ms. Ponce. We now have a co-defendant who is going to testify or provide statements in accordance with the understanding of the People and should the matter go to trial then the charges against her would be dismissed.

I assume that if the other two matters are disposed of then the charges against Ms. Ponce would also be dismissed. Would that be a correct statement? [*4]

MR. ZANGLA: Yes, it would be.

THE COURT: Okay, fine."

The indictment against Ms. Ponce had been severed. On October 31, 2011, Ponce prepared a supplemental statement in her own handwriting. On that date, she and her attorney met with Mr. Zangla at his office for trial preparation. The statement was written by her prior to the meeting. Mr. Zangla had evidently advised before the meeting that Ponce would be asked to identify the burgundy pillowcase. The District Attorney's investigator showed her the burgundy pillowcase at the October 31, 2011 meeting. Ponce stated that she believed the one she saw that night was a darker color. At that meeting, it was apparently agreed that on the evening of April 16, 2011 it had been raining heavily throughout that evening and that if the bag were wet, it would certainly appear to be a darker shade of burgundy. Ms. Ponce's October 31, 2011 handwritten statement, unsigned, was delivered to Mr. Zangla on that date.

A subsequent meeting to prepare Ponce for trial testimony was held between Ponce, her attorney, Mr. Zangla and the District Attorney's investigator. On December 6, 2011, Mr. Zangla advised Mr. Orseck that Ponce would be testifying in the Grillo trial on Friday, December 9, 2011 and that a final prep meeting would be held at his office at 9:00 a.m. on that date. Ponce and her attorney kept the appointment timely. However, Zangla refused to speak to them. He handed Mr. Orseck a copy of a redacted statement signed by one Dylan Rivera on August 9, 2011. He advised Mr. Orseck that he wanted an unredacted copy and would not speak to Ponce or Mr. Orseck until he received it.

In defendant's moving papers, Mr. Orseck affirms as follows:

"The Rivera statement had never been mentioned or referred to in any manner, or at any time, by Mr. Zangla or by any member of the prosecutorial team." [emph in orig].

Mr. Orseck's secretary was contacted and brought the unredacted statement to the Courthouse within a short time and was delivered to Mr. Zangla in the Courtroom during the final stages of the Grillo trial. Ponce and Mr. Orseck were in the Courtroom waiting for her to be called. Mr. Zangla then rested the People's case without having called Ponce to testify. The People now refuse to move to dismiss the indictment against Ponce.

In a nutshell, Mr. Zangla asserts that the agreement read on the record before this Court was procured by Ponce and her attorney in bad faith because her proffered testimony was in conflict with the Rivera statement. Ponce says that Grillo brought the burgundy pillowcase into the house and Rivera says that one Richard Littman brought the burgundy pillowcase into the house. This contention is devoid of any merit whatsoever. On September 1, 2011, Mr. Orseck wrote to the Court, with a copy to the District Attorney's office, which stated as follows:

"In this case, we have multiple statements that on April 16, 2011 one Richard Littman entered the apartment at 10 Britman Road in Bethel wherein our client Marlaina Ponce resided with her mother Kelly Helms. Present at that time was Dylan Rivera. They all state that during the latter part of the day and evening of April 16, 2011, Richard Littman entered those premises. On one occasion, he brought in a large burgundy bag and left it with defendant Grillo who was visiting the house at that time."

Obviously, the District Attorney knew as of September 1, 2011, seven weeks before the [*5]Ponce agreement was entered into on October 21, 2011, that Mr. Orseck was in possession of a statement that, on the night in question, Littman brought a large burgundy bag into the Helms's residence. And, on October 19, 2011, two days before the Ponce agreement was made, the redacted copy of the Rivera statement was served upon the District Attorney's office and filed with the Appellate Division in an Article 78 proceeding related to this case. Whether Mr. Zangla was familiar with these facts or not whether he read Mr. Orseck's letter of September 1, 2011 or Ponce's papers served upon his office on October 19, 2011 which included the redacted Rivera statement or not is irrelevant. The office of the District Attorney of Sullivan County is charged with the knowledge that (a) since September 1, 2011, Ponce's attorney was in possession of a statement that Littman brought the burgundy bag into the Helms's apartment, and (b) since October 19, 2011, with the fact that the Rivera statement had been delivered to its office on that date.

Santobello v. New York, 404 US 257 (1971), a United States Supreme Court case, involved an attempt by the New York County District Attorney's office, as here, to renege upon a plea agreement. One assistant district attorney stated that he had no knowledge of the agreement made by another assistant district attorney. Then Chief Judge Warren Burger noted:

"This record represents another example of an unfortunate lapse in orderly prosecutorial procedures, in part, no doubt, because of the enormous increase in the workload of the often understaffed prosecutor's offices.[FN2] The heavy workload may well explain these episodes, but it does not excuse them. The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called plea bargaining,' is an essential component of the administration of justice. Properly administered, it is to be encouraged. If every criminal charge were subjected to a full-scale trial, the States and Federal Government would need to multiply by many times the number of judges and court facilities." Santobello v. New York, supra at 261.

Judge Douglas's concurring opinion noted:

"I join the opinion of the Court and add only a word. I agree both with THE CHIEF JUSTICE and with Mr. Justice MARSHALL that New York did not keep its plea bargain' with petitioner and that it is no excuse for the default merely because a member of the prosecutor's staff who was not a party to the plea bargain' was in charge of the case when it came before the New York court. The staff of the prosecution is a unit and each member must be presumed to know the commitments made by any other member. If responsibility could be evaded that way, the prosecution would have designed another deceptive contrivance,' akin to those we condemned . . . . [citations omitted].

These plea bargains' are important in the administration of justice both at the state and at the federal levels and, as THE CHIEF JUSTICE says, they serve an important role in the disposition of today's heavy calendars." Santobello v. New York, supra at 263-264.

During the pendency of this motion, the New York Court of Appeals decided People v. Bradshaw, ___ NY3d ___, 2011 WL 615282 (December 13, 2011) [case #237], which held: [*6]

"It is well settled that plea bargaining is a vital part of our criminal system . . . .' In addition to permitting a substantial conservation of prosecutorial and judicial resources, it provides a means where, by mutual concession, the parties may obtain a broad resolution of criminal proceedings with all the benefits that inure from final disposition."

In any event, shortly after December 6, 2011, the jury found Richard Grillo guilty of a number of counts of possession of stolen property, without testimony from Ponce. Ponce is nevertheless entitled to enforcement of the agreement of October 21, 2011, and to dismissal of the charges against her. She has been prejudiced by the District Attorney's office's failure to honor the plea agreement. She has waived her rights to a probable cause hearing and to a Huntley hearing. And, importantly, she has been deprived of the benefits of her attorney's attendance at the Grillo trial whereat he would have had an opportunity to hear the testimony, to observe witnesses and to obtain first-hand knowledge of interim trial rulings made by the Court.

The District Attorney's feeble attempt to justify its entirely unjustifiable reneging on its agreement by casting blame or fault on the part of defense is without any semblance of merit. As already stated, the People's opposing papers are rejected as untimely and even if they were to be considered by the Court, the Court's decision would be the same.

The Court will enforce the agreement made on the record on October 21, 2011.

Based upon the above, it is

ORDERED, that defendant Ponce's motion to dismiss is granted and the indictment against her is dismissed.

This shall constitute the Decision and Order of this Court.

Dated:January 12, 2012

Monticello, NY

___________________________________

Hon. Frank J. LaBuda

Sullivan County Court Judge

and Surrogate

Papers considered:

Notice of Motion to Dismiss and Affirmation of Gerald Orseck dated December 13, 2011; Supplemental Affirmation of Gerald Orseck dated December 14, 2011; Robert L. Zangla's Affirmation (rejected by the Court as untimely served); Robert L. Zangla's letter of December 28, 2011; and Gerald Orseck's letter of December 30, 2011. Footnotes

Footnote 1: For example, the People have the temerity to contend that in computing the CPLR 2214(b) requirement that motion papers be served at least eight days prior to the return date, that weekends are not included in the computation. To this Court's knowledge, no attorney or court has ever even considered such a preposterous argument.

Footnote 2: In the case at bar, the "unfortunate lapse of orderly prosecutorial procedures" did not occur because of workload of an understaffed prosecutor's office. During the course of the Grillo trial, this Court noticed the presence of at least two or three assistant district attorney's sitting in the back of the courtroom and often times as many as four.