People v. Villanova

5 Citing cases

  1. Schouenborg v. Superintendent, Auburn Corr. Facility

    08-CV-2865(JS) (E.D.N.Y. Jun. 23, 2016)

    Here, just like in Velez, defense counsel could have moved to reopen the suppression hearing based upon SV's inconsistent account of the instructions she received from Detective Brittelli at the suppression hearing. Courts in New York have held that trial testimony that contradicts the factual account given by police at a suppression hearing provides grounds to reopen the hearing under N.Y. C.P.L ยง 710.40(4). See People v. Villanova, 179 A.D.2d 381, 381, 578 N.Y.S.2d 151, 152 (1st Dep't 1992) (holding that the trial court erred in denying the defendant's request to reopen a Wade hearing when the complainant and his friend testified, contrary to the police officer's account, that they were "escorted to the scene of the show-up by other police officers in order to identify individuals who had been apprehended.") Moreover, at least one court has explained that "there is no discernable strategic justification for counsel's failure to move to reopen a Wade hearing." Maldonado v. Burge, 697 F. Supp. 2d 516, 542 (S.D.N.Y. 2010).

  2. People v. Clark

    88 N.Y.2d 552 (N.Y. 1996)   Cited 69 times

    Accordingly, I believe that defendant has met his burden under CPL 710.40 (4) of showing that "additional pertinent facts have been discovered * * * which he could not have discovered with reasonable diligence before the determination of the motion." Because the Grand Jury testimony of the complainant undermined the facts that formed the basis of the court's denial of the motion to suppress and because defendant was never able to exercise his right under CPL 710.60 to subject the actual identification procedure employed to adversarial testing, further inquiry at a Wade hearing is warranted ( People v Villanova, 179 A.D.2d 381). Thus, in my view, the trial court abused its discretion in denying defendant's application to reopen the Wade hearing where it could not be determined without the benefit of a new hearing whether any police taint infected the actual identification procedure.

  3. People v. Velez

    39 A.D.3d 38 (N.Y. App. Div. 2007)   Cited 27 times
    Finding that trial court should have reopened suppression hearing since defendant offered new facts beyond the scope of his knowledge of the circumstances of his arrest

    Stated simply, the defendant cannot be penalized for failing to do what the law would not have allowed him to do. We conclude, therefore, that the defendant carried his burden of proffering new facts, which could not have been discovered with reasonable diligence before the determination of his motion, and which are pertinent to the suppression issue in that they may well have affected the hearing court's ultimate determination of probable cause ( see People v Figliolo, supra at 681-682; People v Villanova, 179 AD2d 381; compare People v DeJesus, 222 AD2d 449, 450). Accordingly, the matter is remitted to the County Court, Westchester County, for a de novo suppression hearing before a different judge, and a report thereafter, with respect to those branches of the defendant's omnibus motion which were to suppress physical evidence and identification testimony, and the appeal is held in abeyance in the interim ( see People v Dymond, 130 AD2d 799; see also People v Kuberka, 215 AD2d 592, 593; People v Veal, 158 AD2d 633). Because the same police officers who testified at the first hearing are likely to be called as witnesses at the new hearing, and because the credibility of those officers was, and again will be, in issue, we direct that the new hearing be conducted before a different judge.

  4. People v. Baro

    236 A.D.2d 307 (N.Y. App. Div. 1997)   Cited 6 times

    The trial court properly admitted testimony that when defendant was arrested, his companion was also arrested and was found to be in possession of drugs. This did not constitute evidence of an uncharged crime on the part of defendant, and it was relevant to explain that the other individual, who had also been present at the scene of the homicide, evaded the police because he possessed the drugs, and not because he was the killer ( see, People v Villanova, 179 AD2d 381, lv denied 79 NY2d 954). Since defendant abandoned his request for a limiting instruction, which had been granted, but omitted, by the court, defendant's present claim of error in that regard is unpreserved ( People v Whalen, 59 NY2d 273, 280) and we decline to review it in the interest of justice. Defendant is not entitled to dismissal of the count charging criminal possession of a weapon in the third degree, since it is not a lesser included offense of criminal possession of a weapon in the second degree ( People v Okafore, 72 NY2d 81, 89, n 3). To the extent that our decisions in People v Singh ( 190 AD2d 640, lv denied 81 NY2d 1020) and People v Jackson ( 111 AD2d 648) have held to the contrary, they are overruled.

  5. People v. Rogers

    2008 N.Y. Slip Op. 52136 (N.Y. Misc. 2008)

    Additionally, Criminal Procedure Law ยง 710.40 provides: "If after a pre-trial determination and denial of the motion the court is satisfied, upon a showing by the defendant, that additional pertinent facts have been discovered by the defendant which he could not have discovered with reasonable diligence before the determination of the motion, it may permit him to renew the motion before trial or, if such was not possible owing to the time of the discovery of the alleged new facts, during trial." ( see People v. Villanova, 179 AD2d 381 [1st Dept 1992] [holding that trial court's refusal to re-open Wade hearing when defendant raised a sufficient factual issue regarding the show-up identification was harmless error due to the overwhelming evidence of defendant's guilt]; People v. Veal, 158 AD2d 633 [2nd Dept 1990] [judgment reversed and a new trial ordered based, in part, on trial court's error refusing to re-open the Wade hearing in order that the complainant testify concerning the circumstances surrounding his presence in the parking lot across the street from the police precinct when the defendant was brought into the precinct in handcuffs for the lineup and whether the complainant saw the defendant at that time]; People v. Martin, 35 AD2d 786 [1st Dept 1970] [remand to reopen Wade where trial testimony suggested that the victim apparently made an identification after he had previously observed defendant in police custody]; People v. Andriani, 67 AD2d 20 [1st Dept 1979] cert denied sub nom. Boutureira v New York, 4