People v. Jones

• Decision Date: 05 April 1979
• Citation: 415 N.Y.S.2d 124,69 A.D.2d 912
• Parties: The PEOPLE of the State of New York, Respondent, v. Lorenzo JONES, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 124

415 N.Y.S.2d 124

69 A.D.2d 912

The PEOPLE of the State of New York, Respondent, v. Lorenzo JONES, Appellant.

Supreme Court, Appellate Division, Third Department.

April 5, 1979.

Paul M. Collins, Albany, for appellant.

Sol Greenberg, Albany County Dist. Atty., Albany (George H. Barber, Albany, of counsel), for respondent.

Before MAHONEY, P. J., and SWEENEY, KANE, STALEY and MAIN, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the County Court of Albany County, rendered March 17, 1978, upon a verdict convicting defendant of two counts of sodomy in the first degree.

On October 27, 1977, the defendant and one Fordiin Tas were indicted and charged with two counts of sodomy in the first degree committed on September 10, 1977 at 8:45 P.M. and 8:50 P.M. at the Albany County Jail. Both counts of the indictment related to the same victim, William Constable.

At the trial, the People offered as evidence the testimony of William Constable who identified the defendant as his assailant, and who had identified the defendant on the morning after the incident in a show-up procedure at the jail. On February 21, 1978, the case was reached for trial, at which time the Assistant District Attorney prosecuting the case advised the court that he had been informed that there was a show-up procedure conducted at the jail the morning after this particular incident, and that the defendants had not been noticed of this procedure.

The court denied the motion to preclude, granted the motion of the District Attorney to amend the notice of trial to include the notice of some on-scene show-up and directed a "Wade" hearing on the question of whether the identification of the defendants by complainant should be suppressed. After the hearing, the court denied the motion to suppress stating that nothing occurred that was suggestive with respect to the out-of-court identification procedure of September 11, 1977 and that, regardless of the procedure of September 11, 1977, there was sufficient independent source for the identification of the defendants by the victim, William Constable.

Defendant contends that it was prejudicial error for the trial court to excuse the People's failure to comply with section 710.30 of the Criminal Procedure Law by reason of office failures.

Subdivision 2 of section 710.30 of the Criminal Procedure Law provides that the notice of intention to use testimony of the observation of a defendant by a witness at the trial must be served within 15 days after arraignment, and before trial, and upon such service the defendant must be accorded reasonable opportunity to move before trial to suppress the specified evidence.

Subdivision 3 of that section, however, provides "In the absence of service of notice upon a defendant as prescribed in this section, no evidence of a kind specified in subdivision one may be received against him upon trial unless he has, despite the lack of such notice, moved to suppress such evidence and such motion has been denied and the evidence thereby rendered admissible as prescribed in subdivision two of section 710.70."

Here, the defendant moved to suppress the evidence, despite the lack of notice, and the motion to suppress was denied rendering the evidence admissible. Further, any in-court identification of the defendant by the victim, William Constable, on this record would have had an independent source and origin owing to his familiarity with the defendant as a coinmate in the same tier of cells at the Albany County...