People v. Smith

• Decision Date: 08 October 2020
• Docket Number: Indictment 19-0085
• Citation: 2020 NY Slip Op 34766 (U)
• Parties: THE PEOPLE OF THE STATE OF NEW YORK v. GREGORY SMITH, Defendant.
• Court: New York County Court

2020 NY Slip Op 34766(U)

THE PEOPLE OF THE STATE OF NEW YORK
v.
GREGORY SMITH, Defendant.

Indictment No. 19-0085

County Court, Westchester County

October 8, 2020

Unpublished Opinion

Honorable Anthony A. Scarpino Westchester County District Attorney

Attn: A.D.A. Nicholas DiCostanzo

Joseph Goubeaud, Esq. Attorney for Defendant

DECISION & ORDER

Honorable Susan Cacace County Court Judge

Under the instant indictment, the defendant has been charged with two counts of Criminal Possession of a Controlled Substance in the Third Degree and two counts of Criminally Using Drug Paraphernalia in the Second Degree, arising from events alleged to have occurred on or about October 9, 2018 in the area of 56 Locust Hill Avenue in the City of Yonkers.

By Decision and Order, filed and entered on February 3, 2020, the County Court, Westchester County (Fufidio, J.), ordered a combined pre-trial hearing pursuant to Mapp v Ohio (367 U.S. 643) and Dunaway v New York (442 U.S. 200) to address the defendant's application seeking the suppression of physical evidence which the People seized pursuant to the execution of a search warrant at the alleged residence of defendant Gregory Smith at 56 Locust Hill Avenue in the City of Yonkers on October 9, 2018, Specifically, by this Decision and Order, the County Court, Westchester County (Fufidio, J.), ordered that the combined Mapp/Dunaway hearing to address the defendant's challenge to the execution of the above-referenced search within the scope of the executed search warrant on October 9, 2018. Prior to the commencement of the

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court-ordered Mapp/Dunaway hearing, the County Court, Westchester County (Fufidio, J.), by Amended Decision and Order, filed and entered September 29, 2020, directed that the previously ordered Mapp/Dunaway hearing be expanded to include resolution of the defendant's challenge to the inconsistency between the date of the affiant's oath listed upon the search warrant affidavit and the date of issuance listed upon the search warrant order.

In accordance therewith, this Court conducted a combined Mapp/Dunaway hearing on October 1, 2020 to determine the trial admissibility of physical evidence including cocaine, cellular telephones, U.S. currency, plastic sandwich bags and digital scales which were seized from the defendant's person and from within his residence pursuant to the execution of the above-referenced search warrant at 56 Locust Hill Avenue in the City of Yonkers on October 9, 2018. During this combined Mapp/Dunaway hearing, City of Yonkers Police Department Detectives Stephen Donohue, Robert McLaughlin and James McDonough testified as witnesses on behalf of the People, whereas, the defense declined to present any witnesses on behalf of the defendant. Upon considering the testimony of these three witnesses, I give credence to the testimonial evidence offered by each one of them. Based upon the evidence adduced at this combined Mapp/Dunaway hearing, I make the following findings of fact and conclusions of law:

FINDINGS OF FACT

Detective Stephen Donohue of the City of Yonkers Police Department (YPD), presented himself before the Hon. Evan Inlaw, City Court Judge of the City of Yonkers, at approximately 2:20 PM on October 9, 2018, and submitted to him an unsigned search warrant affidavit, which

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was admitted into evidence as People's Exhibit #1 A, and an unsigned search warrant order, which was admitted into evidence as People's Exhibit #IB, thereby seeking authorization for the search of the premises located in the first apartment on the right side at 56 Locust Hill Avenue in the City of Yonkers (hereinafter, the target location) and any adult persons located therein. Upon being administered an oath to the contents of Exhibit 1A by Judge Inlaw, Det. Donohue placed his signature upon the last page of the affidavit and personally observed Judge Inlaw prepare the jurat by writing the number "9" to reflect the present day of the month, and "December" to reflect the present month, and then personally observed Judge Inlaw write his signature thereupon. Immediately thereafter, Det. Donohue observed Judge Inlaw review Exhibit #IB, and write "October 9th" thereupon to reflect the present month and day of the month, which he followed by writing his signature upon the line provided and "2:20pm" to reflect the present time. With regard to the discrepancy between Judge Inlaw's nearly simultaneous writing of both "December" upon the search warrant affidavit and "October" upon the search warrant order, Det. Donohue testified that although he had observed Judge Inlaw mistakenly write the incorrect month of "December" upon the search warrant affidavit, he did not realize the mistaken entry at that time, and he declined to take any corrective action when he recognized Judge...