Opinion
Ind. No. 21-00712-01
01-20-2022
THE PEOPLE OF THE STATE OF NEW YORK v. XAVIER WILSON, Defendant.
Adrian Murphy Assistant District Attorney Westchester County Office of the District Attorney Adeel Mirza, Esq. Attorney for Defendant
Unpublished Opinion
Adrian Murphy Assistant District Attorney Westchester County Office of the District Attorney
Adeel Mirza, Esq. Attorney for Defendant
DECISION AND ORDER
ROBERT A. NEARY, JUDGE
The defendant, Xavier Wilson, has been charged with the crime of Criminal Possession of a Weapon in the Second Degree. The defendant has made an omnibus motion which consists of a Notice of Motion and an Affirmation and Memorandum of Law in Support thereof. In response, the People have filed an Affirmation in Opposition together with a Memorandum of Law. Having read all of the submitted papers and reviewed the court file, this Court makes the following determination.
A. and B. MOTION TO INSPECT THE GRAND JUYR MINUTES AND DISMISS THE INDICTMENT FOR INSUFFICIENT EVIDENCE AS THE EVIDENCE BEFORE THE GRAND JURY WAS LEGALLY INSUFFICIENT TO SUPPORT THE OFFENSE CHARGED
The defendant's motion to inspect the Grand Jury minutes is granted. Upon an in camera inspection of the Grand Jury minutes by Court, the motion to dismiss the indictment or reduce a charged offense in the indictment is denied.
The Court has reviewed the minutes of the proceeding before the Grand Jury. The Grand Jury was properly instructed (see People v. Calbud, 49 N.Y.2d 389, 426 N.Y.S.2d 389, 402 N.E.2d 1140 and People v. Valles, 62 N.Y.2d 36, 476 N.Y.S.2d 50,464 N.E.2d 418) and the evidence presented, if accepted as true would be legally sufficient to establish every element of the offenses charged. [See CPL §210.30(2)]. In addition, the minutes 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, and that it was instructed that only those grand jurors who had heard all the evidence could participate in voting on the matter.
The Court does not find that the release of the Grand Jury minutes or certain I portions thereof to the parties was necessary to assist the Court in making this determination.
C. MOTION FOR A WADE HEARING TO DETERMINE WHETHER THE NOTICED INDENTIFICATION OF THE DEFENDANT SHOULD BE SUPPRESS AS UNDULY SUGGESTIVE
The defendant's motion to suppress the noticed identifications is denied without a hearing. The Court finds that the viewing of the video of the crime in progress by witnesses in the Grand Jury is not an identification procedure that is subject to suppress or requiring notice pursuant to CPL 710.30. The witness did not "previously identify [defendant] as such"-- i.e., as the defendant in the case -within the meaning of CPL 710.30(1). It is clear that the video depicted the actual crime and that the only persons shown in the videotape were the police and the defendant. Unlike lineups or photo arrays, in which the defendant's identity is at issue, the witness was not presented with a group of individuals (one or whom the police suspected of the crime) and asked to make an identification. There were no other choices, and there was nothing resembling a selection process. As made clear in Gissendanner, "in cases in which the defendant's identity is not in issue, "suggestiveness' is not a concern and, hence, [CPL 710.30] does not come into play." [See 48 N.Y.2d at 552], The witnesses in question were merely ratifying the events they had personally experienced as depicted in the video. [See People v. Gee, 99N.Y.2d 158, 782 N.E.2d 1155, 753 N.Y.S.2d 19(2002); People v. Lara, 130 A.D.3d 463, 13 N.Y.S.3d 74 (2015); People v. Justice, 127 A.D.3d 786, 6 N.Y.S.3d 281 (2015); Matter of Dashawn R, 120 A.D.3d 1250, 992 N.Y.S.2d 122 (2014); People v. Cascio, 79 A.D.3d 1809, 914 N.Y.S.2d 490 (2010)].
Accordingly, as there is no basis for suppression of the noticed identifications, the motion is denied.
D. MOTION FOR A DUNAWAY/MAPP HEARING TO DETERMINE THE ADMISSIBILITY OF ANY TANGIBLE PROPERTY AT THE TRIAL OF THIS MATTER AS NO PROBABLE CAUSE EXISTED FOR SEARCH AND SEIZURE OF THE DEFENDANT '
This branch of the defendant's motion is granted solely to the extent of conducting a Mapp hearing prior to trial to determine the propriety of any search resulting in the seizure of property (see Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081) and whether any evidence was obtained in violation of the defendant's Sixth Amendment right to counsel and/or obtained in violation of the defendant's Fourth Amendment rights. [See Dunaway v. New York, 42 U.S. 200, 99 S.Ct. 2248, 60L.E.2d 824], The hearing will also address the issue of whether the defendant abandon the property in question.
E. MOTION FOR A SANDOVAL HEARING TO BE HELD TO DETERMINE THE SCOPE OF THE CROSS-EXAMINATION OF THE DEFENDANT CONCERNING ANY PRIOR CONVICTIONS OR PROOF OF THE COMMISSION OF SPECIFIC CRIMINAL, VICIOUS OR IMMORAL ACTS, AND A VENTIMIGLIA HEARING TO DETERMINE THE ADMISSIBILITY OF ANY SO-CALLED UNCHARGED CRIMES OR PRIOR SIMILAR ACTS THE PEOPLE INTEND TO INTRODUCE AT TRIAL
Immediately prior to commencement of jury selection, the prosecutor shall, upon request of the defendant, notify the defendant of any prior criminal act which the People seek to use in the cross-examination of the defendant as well as all specific instances of the defendant's prior uncharged criminal, vicious or immoral conduct of which the prosecutor has knowledge and which the prosecutor intends to use at trial for the purposes of impeaching the credibility of the defendant. Thereafter, upon the defendant's request, the trial court shall conduct a Sandoval and/or Ventimiglia hearing prior to the commencement of trial. [See People v. Sandoval, 34 N.Y.2d 371 (1974); People v. Ventimiglia, 52 N.Y.2d 350 (1981); People v. Molineux, 168 NY 264 (1901)].
F. MOTION FOR RERSERVATION OF RIGHTS
Upon a proper showing, the Court will entertain appropriate additional motions based upon grounds of which the defendant could not, with due diligence, have been previously aware, or which, for other good cause, could not reasonably have been raised in this motion. [See CPL §255.20(3)].
This constitutes the opinion, decision and order of this Court.