| People v Gomez |
| 2022 NY Slip Op 51082(U) [76 Misc 3d 1230(A)] |
| Decided on June 14, 2022 |
| Supreme Court, New York County |
| Newbauer, 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
The People of
the State of New York, Plaintiff,
against Maximo Gomez, Defendant. |
The defendant has moved by omnibus motion for various forms of pretrial relief. The motion is decided as follows:
The defendant's motion to inspect the Grand Jury minutes is granted. Upon inspection, the motion to dismiss the indictment or reduce a charged offense in the indictment is denied. The minutes reveal that a quorum of the Grand Jury was present during the presentation of evidence and at the time the Assistant District Attorney instructed the grand jurors on the law. The evidence before the Grand Jury was legally sufficient to support each and every count in the indictment. The defendant's motion to dismiss the indictment for a defect in the District Attorney's instructions on the law to the Grand Jury is denied. The instructions were not defective as a matter of law.
The defense motion as to identification evidence is granted insofar as to order a Wade/Dunaway hearing. United States v. Wade, 388 U.S. 218 (1967); Dunaway v. New York, 442 US 200 (1979). Facial recognition software was employed only to identify a potential suspect, not as the basis for the defendant's arrest. However, a hearing is granted because there is a strong suggestion that the circumstances here differ from those in People v. Gee, 286 AD2d 62 (4th Dept 2001), affd, 99 NY2d158 (2002). An officer was contacted to look at a video precisely because he had previously arrested the defendant. This appears more to be a confirmatory procedure than an attempt to pinpoint a suspect, as in Gee.
In an abundance of caution, the motion for a Payton hearing is also granted. The defendant asserts that officers who lacked authority passed the threshold of his home at 1218 Hoe Avenue, Bronx, NY. See Payton v. New York, 445 US 573 (1980); People v, Knapp, 52 NY2d 689 (1981). Although the People maintain that the defendant was arrested in the common area of a group residence, see People v. Powell, 54 NY2d 524 (1981), this factual dispute is best sorted out at a hearing. Any applications pursuant to Sandoval/Ventimiglia will be heard immediately before [*2]trial. People v. Sandoval, 34 NY2d 371 (1974); People v. Ventimiglia, 52 NY2d 350 (1981).
The People are reminded of the continuing obligation to provide exculpatory information to the defendant. See Brady v. Maryland, 373 US 83 (1963). The parties are ordered to comply with their obligations set forth in CPL Article 245.
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 shall constitute the decision and order of the court.