People v. Wilson

2022 NY Slip Op 34766(U)

• Court: New York Supreme Court, Westchester County
• Decided: January 20, 2022
• Docket: Ind. No. 21-00712-01
• Status: Unpublished

Opinion

People v Wilson 2022 NY Slip Op 34766(U) January 20, 2022 Supreme Court, Westchester County Docket Number: Ind. No. 21-00712-01 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 / • ,,J, /" 202.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

XAVIER, WILSON, Ind. No. 21-00712-01

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

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.

[* 1] • People v. Xavier Wilson Indictment No. 21-00712-01

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 NY2d 389,426 NYS2d 389,

402 NE2d 1140 and People v. Valles, 62 NY2d 36,476 NYS2d 50,464 NE2d 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.

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[* 2] People v. Xavier Wilson Indictment No. 21-00712-01

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 thafthe 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 ari 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 NY2d at 552]. The witnesses in question were merely

ratifying the events they had personally experienced as depicted in the video. [See People v.

Gee, 99 NY2d 158, 782 NE2d 1155, 753 NYS2d 19(2002); People v. Lara, 130 AD3d 463, 13

NYS3d 74 (2015); People v. Justice, 127 AD3d 786, 6 NYS3d 281 (2015); Matter of Dashawn

R., 120 AD3d 1250, 992 NYS2d 122 (2014); People v. Cascio, 79 AD3d 1809, 914 NYS2d 490

(2010)].

Accordingly, as there is no basis for suppression of the noticed identifications, the

motion is denied.

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[* 3] ;

People v. Xavier Wilson Indictment No. 21-00712-01

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 US 643, 81 S Ct. 1684, 6 LE2d 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 US 200, 99 S Ct. 2248, 60LE2d 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

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[* 4] People v. Xavier Wilson Indictment No. 21-00712-01

. the defendant. Thereafter, upon th_e 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

NY2d 371 (1974); People v. Ventimiglia, 52 NY2d 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.

Dated: White Plains, New York , January 20, 2022

ROBERTA.NE SUPREME COURT JU Adrian Murphy Assistant District Attorney Westchester County Office of the District Attorney Richard J. Daronco Courthouse 111 Martin Luther King Blvd. White Plains, New York 10601 amurphy@westchesterda.net.

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[* 5] People v. Xavier Wilson Indictment No. 21-00712-01

Adeel Mirza, Esq. Attorney for Defendant 399 Knollwood Road, Suite 111 . r'

· White Plains, New York 10603 amirzal 200 l@gmail.com

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