People v Sanchez

[*1] People v Sanchez 2009 NY Slip Op 52620(U) [26 Misc 3d 1201(A)] Decided on December 22, 2009 Supreme Court, Bronx County Price, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 22, 2009
Supreme Court, Bronx County

The People of the State of New York

against

Jacinto Sanchez, Defendant.



0378-2008



For the Defendant:

Michael S. Berardino, Esq.

For the People:

Debra Guarnieri

Assistant District Attorney

Bronx County District Attorney

Richard L. Price, J.

Defendant moved, among other things, for suppression of several lineups on the grounds that they were unduly suggestive, were conducted in violation of his right to counsel and were the fruits of an unlawful arrest.[FN1] On January 13, 2009, this matter was administratively transferred from Motion and Conference Part 50 for the purpose of conducting a combined Wade/Dunaway/Mapp hearing, which commenced before this court and concluded on February 9, 2009.[FN2] On May 1, 2009, this court denied defendant's motion in its entirety and the matter was subsequently returned to Motion and Conference Part 50. On September 22, 2009, this court issued an expanded decision that set forth the findings of fact and conclusions of law. On December 14, 2009, this matter was administratively transferred from Trial Part 13 to this court for resolution of an outstanding discovery issue.

By letter, dated December 15, 2009, defense counsel seeks to reopen the Wade portion of the pre-trial hearing based on recently received discovery materials. Prior to the earlier hearing's conclusion, defense counsel specifically requested that the assigned assistant district attorney, Nicole Garretson, provide copies of all Evidence Collection Team reports ("ECT") relating to the recovery of the taxicabs that the defendant is alleged to have taken during the course of the robberies. As counsel correctly notes, pursuant to his clear and specific request, ADA Garretson [*2]stated in open court on the record, "I have no reports from either collection team."

At some point, for reasons undisclosed to this court, the District Attorney reassigned this matter to another assistant. According to defense counsel, on December 9, 2009, he contacted that assistant and renewed his request for discovery materials never received including the ECT reports. Apparently, ADA Garretson informed the new assistant that in fact, she provided those reports to counsel. Notwithstanding her representation, however, the District Attorney produced no record indicating that they had.

This court further notes that during the course of the pre-trial hearing, ADA Garretson indignantly insisted that she had provided defendant with all relevant discovery in this matter. This fact is in question.

Consequently, on December 10, 2009, counsel received the ECT reports from the newly assigned assistant. Counsel immediately began reviewing them and learned that on December 24, 2007, the day on which Mr. Aldabishi was robbed, the Evidence Collection team downloaded one or more images from the camera installed inside Mr. Aldabishi's taxicab. It further appears that from those images, one or more photographs were prepared and displayed to Mr. Aldabishi, whereupon he positively identified the defendant as the perpetrator of the robbery.

On December 14, 2009, this court heard defendant's application to reopen the Wade portion of the pre-trial hearing. Counsel claims that based upon this newly discovered information, which contradicts the testimony adduced at the hearing concerning that which was displayed to Mr. Aldabishi prior to his viewing a photograph array and lineup of the defendant. Based on this, counsel argues that displaying photographs obtained from the taxicab's camera tainted any subsequent identification of the defendant. He therefore seeks to examine these events as well as reexamine the identification procedures involving Mr. Aldabishi. This court agrees.

By letter, dated December 17, 2009, the District Attorney opposes defendant's application, although in light of what appears to be a misrepresentation, it is entirely unclear why. Certainly, the District Attorney does not seek to deprive the defendant of his statutory right to explore and examine the facts and circumstances surrounding police arranged identification procedures (see CPL 710.30 [1] [b]). Moreover, in light of ADA Garretson's alleged misrepresentation, it would seem that the District Attorney would only be too willing to accommodate the defendant's reasonable and limited request.

Nevertheless, citing People v Gee (99 NY2d 158 [2002]), the District Attorney indeed opposes defendant's request. Gee, however, is wholly inapplicable. Gee quite clearly stands for the proposition that video surveillance tapes are not inherently suggestive and do not require notice pursuant to CPL 710.30 [1] [b]. Counsel's argument, however, has absolutely nothing to do with whether notice was timely provided. Moreover, counsel is not arguing that it was a police arranged identification procedure. Rather, counsel simply argues that what transpired may have tainted the subsequent identification procedures. Under these circumstances, Gee certainly does not preclude reopening of the Wade hearing. Accordingly, this court finds no justification whatsoever for denying counsel's request.

Defendant's application to reopen the Wade portion of the pre-trial hearing conducted before this court is granted. [*3]

This constitutes the decision and order of the court.

Dated:December 22, 2009

ENTER

________________________________

Richard Lee Price, J.S.C. Footnotes

Footnote 1: Defendant also moved to suppress a boxcutter as having been seized from him inside his home without a warrant.

Footnote 2: This hearing continued on January 14, 2009, January 20, 2009, January 29, 2009, January 30, 2009, February 2, 2009, February 4, 2009, February 5, 2009, and February 6, 2009.