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Consequently, the court ordered to deny the motion of the offender


At approximately 3:00 P.M., three men wearing hooded sweatshirts entered a restaurant. The men waited by the door for a few minutes until all of the customers left. One of the men then approached the register and placed an order. After receiving the order, the three men went into the bathroom. A few moments later, two of the men returned to the register, and at that time, according to a cashier, the taller of the two men, who was wearing a gray hooded sweatshirt, pulled out a gun and instructed her to give them all of her money.

The cashier testified at the trial that she was approximately 5’6 1/2 tall and that the man was much taller than she was, probably about 6’2. She further stated that she did not saw the man’s face, however, because the robbers had instructed her not to look at them. The robbers also took money from another cashier.

While the holdup was in progress, the restaurant manager came downstairs from the second floor of the store and entered the area behind the register. From a distance of about six to nine feet, the manager was able to observe, for about five or ten seconds, the face of the man wearing the gray sweatshirt and holding the gun. The hood of his sweatshirt was drawn tightly around his head so that his hair and ears were not visible, and the shape of his head was obscured. But, the manager asserted that he saw their eyes, nose and mouth. At that distance, the manager, who testified that she was 5’6 or 5’7 tall, stated that she made eye contact with the robber with the gun. She later estimated his height at 5’7 or 5’8, and further described him as having a small goatee.

The original police report, however, indicated that the suspect was approximately 6’2.

At the time of the robbery, the restaurant was equipped with a Polaroid-type camera, which was mounted about five feet above the counter. It was triggered by the removal of a bill from any of the cash registers, and would pivot so that it would photograph all of the registers. During the instant robbery, the camera took approximately ten photographs, all of which were handed over to the police on the day of the crime.

Over a month after the robbery, the offender and several other individuals were arrested with the crime of criminal possession of a weapon charges. The arrest report states that the offender’s height is 5’5. Subsequently, the offender and the others were identified as persons involved in a series of robberies in the county.

A detective obtained photographs of the offender and the others who were arrested with him. Afterward, the said photographs were exhibited to the restaurant manager in a batch of approximately thirty photos. She identified the offender’s photograph as that of the man in the gray sweatshirt who displayed the gun, but could make no other identification. The offender was thereafter arrested for the robbery.

Subsequently, the offender demanded any evidence or information that might be considered a material, that is, material that might tend to be exculpatory. The man’s attorney was not then informed of the existence of the surveillance photographs. The fact that the surveillance camera had taken photographs of the robbery was not discovered until the hearing. At that time, it was also learned that the detective had discarded the photographs. In explanation of his actions, the detective stated that he believed that the photographs showed nothing that would be of value in an identification procedure.

At the conclusion of the hearing, the court ruled only on the identification issue. The court then suppressed the restaurant manager’s photographic identification of the offender, principally on the ground that the array shown to her had not been properly preserved, but further found that an independent source existed for her in-court identification.

The offender also filed an appeal, as limited by his brief, from the decision of the Supreme Court convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence.

The appeal then brings up for review and the denial of the offender’s motion to dismiss the indictment due to the destruction of potentially exculpatory material.

Moreover, the criminal offender also moved to dismiss the indictment on the ground that the police had destroyed the material by discarding the photographs taken by the restaurant’s surveillance camera.

In support of the offender’s argument, he pointed out that a face or part of a face allegedly had been visible in the photographs, and that the original police report indicated the robber’s height to be 6’2, while he is 5’3. Consequently, the court ordered to deny the motion of the offender.

Afterward, the case proceeded to trial. The detective testified that the surveillance photographs had been blurred and were of poor quality, although he admitted that a profile of one of the robbers had been visible. At the hearing, the detective testified that he had discarded the photographs because they appeared to be of no value and he did not believe that a person’s height could be ascertained from the photographs.

In contrast, the restaurant manager, who had also seen the surveillance photographs, testified that the images on them were clear, and that the heights of the robbers could be seen relative to the heights of the cashiers. She further testified that at least one of the photographs showed part of the face of the robber who wore the gray sweatshirt and carried the gun, the robber identified as the offender. Even if one of the two cashiers also testified, she was not able to make the identification, and only the restaurant manager’s identification of the offender connected him to the robbery.

Based on records, the destruction of the surveillance photographs by the police which constituted potential the material requires reversal of the conviction and dismissal of the indictment.

The court stated that it is clear that the police misconduct in destroying the surveillance photographs violated the requirements.

Sources revealed that in determining whether the prosecution should be sanctioned for the destruction of the potential material, the court must consider the degree of negligence or bad faith on the part of the law enforcement officials and the importance of the evidence lost, and the evidence of guilt presented at trial.

Finally, the court avers that the destroyed evidence was relevant on the sole critical issue in the one-witness identification case, namely, the identification of the robber. Other than the identification testimony of the restaurant manager, virtually nothing connects the offender to the crime. For the said reason, it can hardly be said that the evidence against the offender was overwhelming.

Addressing the issue of an appropriate sanction, while the criminal court is aware that the drastic remedy of dismissal should not be invoked where less severe measures can correct the harm done by the loss of evidence, the court is compelled to conclude, that in the case, the only appropriate remedy is the reversal of the conviction and dismissal of the indictment, as the offender has been deprived of material with great potential value to his defense, and there is no other remedy available.

Nowadays, mistaken identities can still happen. Whenever someone accused you of a crime and you know that you are not the right person to be held liable, you can ask legal representation from the Queens County Criminal Lawyer. Stephen Bilks and Associates office can also provide you with the expertise of the Queens County Arrest Lawyer.

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