People v Davis

[*1] People v Davis 2015 NY Slip Op 51725(U) Decided on November 25, 2015 Mount Vernon City Ct Seiden, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 25, 2015
Mount Vernon City Ct

The People of the State of New York,

against

Audwin Davis, Defendant.



15-3191



Westchester County District Attorney

Mount Vernon branch

Theresa Gerardi, Esq.

Attorney for Defendant

22 West First Street

Mt. Vernon, NY 10550
Adam Seiden, J.

Defendant is charged by misdemeanor information with one count of Sexual Abuse in the Second Degree (PL 130.60) and one count of Endangering the Welfare of a Child (PL 260.10). He makes this omnibus motion seeking 1) to suppress statements made to law enforcement on the ground they were involuntarily made, or in the alternative, a Huntley hearing on the issue, 2) to preclude evidence of his identification from being offered at trial on that ground that the 710.30 notice is defective, 3) a Ventimiglia hearing, and 4) a Sandoval hearing.

The People consent to Huntley and Sandoval hearings, but otherwise oppose the motion.

The People filed a 710.30 notice indicating that they intend to offer evidence of a videotaped statement made by defendant at Mount Vernon Police headquarters on October 6, 2015. In light thereof, defendant's motion for a Huntley hearing is granted.

Defendant also moves to preclude the use of identification evidence at trial, arguing that the identification notice is defective, in that it fails to provide the manner in which the identification was made. Defendant further argues that the notice fails to provide the circumstances and identities of the persons who were present. Defense counsel argues that without this information, a suppression hearing is not possible.

The 710. 30 Identification Notice provides in pertinent part:Please take notice, pursuant to Section 710.30 of the Criminal Procedure Law, that during the trial of the above named matter, the People expect to introduce [*2]the testimony identifying the defendant Audwin Davis as the person who committed the crimes as charged, which testimony will be given by a witness who has previously identified the defendant as such: At the Mount Vernon Police Department at approximately 1855 hours on September 30, 2015.

In the affirmation in opposition, the People state that the identification in this matter was made from a single photograph. They maintain that unlike a statement notice, an identification notice need not provide details of the factual circumstances of the identification. The People argue that such details, if relevant, may be explored at a hearing. The People further argue that the defendant and alleged victim are known to each other. The People argue that the defendant is a friend of the alleged victim's foster mother. The People further allege that the defendant sees the alleged victim and her foster mother in church, helps the foster mother cook and walks the alleged victim's dog. In this case, it is alleged that the defendant was returning the alleged victim's dog to the residence when he allegedly encountered the victim.

In reply to the affirmation in opposition, defendant argues that nothing in the identification notice filed and served on defendant indicates that the identification was made from a single photograph.

Here the People filed a CPL 710.30 notice setting forth the date, time and place of the out-of-court identification of the defendant, along with a supporting deposition attached to the misdemeanor information. The statute does not require specificity as to the manner in which the complainant identified the defendant (People v. McRae, 195 AD2d 180 (1st Dept. 1994)). The prosecutor's obligation under the statute is to provide defendant with sufficient information so that he may move to suppress (Id.) Just as defendant need not make any specific allegations in order to obtain a Wade hearing, there is no necessity that the notice provide details of the factual circumstances of the identification (Id.). Such factual details, if relevant, may be explored at the hearing (Id.). Therefore, the defendant's motion to preclude evidence of his identification is denied.

Defendant has not moved to suppress the identification nor has he requested a Wade hearing. Nevertheless, the Court finds that defendant has not demonstrated a basis for this Court to grant a Wade hearing (CPL 255.20(3)). In the supporting deposition of Aaliyah Jacobs, annexed to the information, she alleges that the defendant is known to her, in that he comes to her house often, and that they attend the same church.

The motion for a Sandoval hearing is granted and shall be renewed before the trial Judge. The defendant's motion for a Ventimiglia hearing is denied at this time. The motion may be renewed in the event the People later seek to offer evidence of defendant's past bad acts on their direct case at trial.

This constitutes the Decision and Order of this Court.

Dated: November 25, 2015

Mount Vernon, New York

________________________________

HON. ADAM SEIDEN

Associate City Judge of Mount Vernon

AS/akb