source hearing in New York

2022Accordingly, defendant is entitled to suppression of the lineup identification at issue, as well as a new trial preceded by an independent source hearing regarding the witness who identified him at that lineup ( see People v Burt s, 78 NY2d 20, 23-24 [1991]).

2019Accordingly, the undercover officer's identification of defendant and the buy money recovered as a result of the unlawful arrest should have been suppressed, and defendant is entitled to a new trial preceded by an independent source hearing ( see People v Burts , 78 NY2d 20, 23-24 [1991]).

2017We reject this argument under the independent source rule. "[W]here the evidence sought to be suppressed is the product of an independent source entirely free and distinct from proscribed police activity, it should be admissible and not subject to a per se rule of exclusion based solely on the unlawful conduct" ( People v Arnau , 58 NY2d 27, 35 [1982], cert denied 468 US 1217 [1984]). "[T]he independent source rule is applicable . . . [where] there is no causal connection, direct or indirect, proximate or attenuated, between the illegality and the subsequent seizure.

2017We reject this argument under the independent source rule. “[W]here the evidence sought to be suppressed is the product of an independent source entirely free and distinct from proscribed police activity, it should be admissible and not subject to a per se rule of exclusion based solely on the unlawful conduct” (People v Arnau, 58 NY2d 27, 35 [1982], cert denied 468 US 1217 [1984]). “[T]he independent source rule is applicable [where] there is no causal connection, direct or indirect, proximate or attenuated, between the illegality and the subsequent seizure.

2015Since the reliability of the complainant's identification is at issue, and the Supreme Court, by finding the showup was not unduly suggestive did not conduct an independent source hearing, we reverse and vacate the robbery and stolen property convictions of all three defendants, remand for a pretrial independent source hearing, and a new trial on the robbery and criminal possession of stolen property counts ( People v Wilson , 5 NY3d 778 [2005]; People v Foster , 200 AD2d 196, 200-201 [1st Dept 1994]).

2015Since the reliability of the complainant’s identification is at issue, and the Supreme Court, by finding the showup was not unduly suggestive did not conduct an independent source hearing, we reverse and vacate the robbery and stolen property convictions of all three defendants, remand for a pretrial independent source hearing, and a new trial on the robbery and criminal possession of stolen property counts (People v Wilson, 5 NY3d 778 [2005]; People v Foster, 200 AD2d 196, 200-201 [1st Dept 1994]).

2018He's a criminal." At the conclusion of the People's presentation, defense counsel moved, citing People v Chipp ( 75 NY2d 327 ), for an independent source hearing.

2011At the independent source hearing, the presentment agency failed to establish by clear and convincing evidence that the in-court identification of the respondent by Danetta P. was based upon the witness’s independent observation of the respondent (People v Chipp, 75 NY2d 327, 335 [1990], cert denied 498 US 833 [1990]; cf. People v Reynoso, 231 AD2d 592, 593 [1996]).

2019Here, contrary to the defendant's contention, at an independent source hearing, the prosecution proved by clear and convincing evidence that the complainant's in-court identification of the defendant would be based on his independent observations during the robbery ( see People v Jenkins , 38 AD3d 566 ; People v Brown , 293 AD2d 686 ; People v Radcliffe , 273 AD2d 483 ; People v Fuentes , 240 AD2d 511 ). "[I]n reviewing claims of ineffective counsel [a court must] avoid both confusing true ineffectiveness with mere losing tactics and according undue significance to retrospective analysis" ( Pe

2019Here, contrary to the defendant's contention, at an independent source hearing, the prosecution proved by clear and convincing evidence that the complainant's in-court identification of the defendant would be based on his independent observations during the robbery ( see People v Jenkins , 38 AD3d 566 ; People v Brown , 293 AD2d 686 ; People v Radcliffe , 273 AD2d 483 ; People v Fuentes , 240 AD2d 511 ). "[I]n reviewing claims of ineffective counsel [a court must] avoid both confusing true ineffectiveness with mere losing tactics and according undue significance to retrospective analysis" ( Pe

2015Since the reliability of the complainant's identification is at issue, and the Supreme Court, by finding the showup was not unduly suggestive did not conduct an independent source hearing, we reverse and vacate the robbery and stolen property convictions of all three defendants, remand for a pretrial independent source hearing, and a new trial on the robbery and criminal possession of stolen property counts ( People v Wilson , 5 NY3d 778 [2005]; People v Foster , 200 AD2d 196, 200-201 [1st Dept 1994]).

2015Since the reliability of the complainant’s identification is at issue, and the Supreme Court, by finding the showup was not unduly suggestive did not conduct an independent source hearing, we reverse and vacate the robbery and stolen property convictions of all three defendants, remand for a pretrial independent source hearing, and a new trial on the robbery and criminal possession of stolen property counts (People v Wilson, 5 NY3d 778 [2005]; People v Foster, 200 AD2d 196, 200-201 [1st Dept 1994]).

2015The People were entitled to a reasonable time to prepare for the hearing after defense counsel provided them with a recorded interview of the People’s witness who was to testify at that hearing, and the time permitted for the adjournment of that hearing was excludable (see CPL 30.30 [4] [a], [g]; People v Moolenaar, 262 AD2d 60, 60 [1999], lv denied 94 NY2d 826 [1999]).

2015The People were entitled to a reasonable time to prepare for the hearing after defense counsel provided them with a recorded interview of the People’s witness who was to testify at that hearing, and the time permitted for the adjournment of that hearing was excludable (see CPL 30.30 [4] [a], [g]; People v Moolenaar, 262 AD2d 60, 60 [1999], lv denied 94 NY2d 826 [1999]).

2009The evidence seized and the identification of the defendant were the fruit of the illegal search and should be suppressed (see Wong Sun v United States, 371 US 471, 488 [1963]), and the matter should be remitted for an independent source hearing (see People v Wilson, 5 NY3d 778 [2005]).

1987Finally, we find no fault in the refusal of Supreme Court to apply the independent source doctrine which states that only evidence acquired through exploitation of illegal police conduct should be suppressed (People v Arnau, 58 NY2d 27, 32 ; see, Wong Sun v United States, 371 US 471, 488 ).

2024One commonly advanced corollary to this rule is the independent source doctrine, under which a court need not suppress evidence if the People demonstrate that it was “ ‘acquired by means sufficiently distinguishable from the arrest to be purged of the illegality,’ i.e., that the taint of the illegal arrest was ‘attenuated’ ” (People v Jones, 21 NY3d 449, 455 [2013] [citations omitted]). -5- -6- No. 38 Applying these principles to identifications, “once the pretrial identification . . . is shown to be impermissible and improper, any in-court identifications, though not per se excludable, are no

2006His argument, essentially, is that, considering Mrs. Sykes’s limited view of the robber, and the long lapse of time and the many intervening events — including the photo array and the lineup — between the crime and the independent source hearing, it was impossible to find by the requisite clear and convincing evidence that the lineup would not influence her in-court identification (see United States v Wade, 388 US 218, 240 [1967]; People v Ballott, 20 NY2d 600, 606 [1967]).

1996"A wisdom developed after an event and having it and its consequences as a source is a standard no [person] should be judged by” (Costello v Costello, 209 NY 252, 262 ).

1994"A wisdom developed after an event and having it and its consequences as a source is a standard no man should be judged by” (Costello v Costello, 209 NY 252, 262 ).

2019Accordingly, the defendant is entitled to a new trial, to be preceded by an independent source hearing ( see People v Gethers , 86 NY2d 159, 163 ; People v Dodt , 61 NY2d 408, 417 ).

2016As the evidence of the defendant's guilt was far from overwhelming, and hinged essentially on the identification testimony ( see People v Gethers, 86 NY2d 159, 163 ), I would reverse and order a new trial, to be preceded by an independent source hearing ( see People v Pride, 129 AD3d 869, 870 ).

1965See, also, Matter of Clark, 257 N. Y. 132, 140 .) Except by hindsight, one cannot determine whether it was ‘ ‘ part of "wisdom to sell the stocks at what each month may well have seemed bottom prices.” (Matter of Clark, supra, p. 139.) “ A wisdom developed after an event and having it and its consequences as a source is a standard no man should be judged by”.

1965See, also, Matter of Clark, 257 N. Y. 132, 140 .) Except by hindsight, one cannot determine whether it was ‘ ‘ part of "wisdom to sell the stocks at what each month may well have seemed bottom prices.” (Matter of Clark, supra, p. 139.) “ A wisdom developed after an event and having it and its consequences as a source is a standard no man should be judged by”.

2019Accordingly, the defendant is entitled to a new trial, to be preceded by an independent source hearing ( see People v Gethers , 86 NY2d 159, 163 ; People v Dodt , 61 NY2d 408, 417 ).

1996In order to determine whether the undercover officer should nonetheless have been allowed to make an in-court identification, it is necessary to reverse the judgment of conviction and order an independent source hearing on this issue, to be fol lowed by a new trial (People v Gethers, 86 NY2d 159 ; People v Burts, 78 NY2d 20 ; People v Dodt, supra).

2006His argument, essentially, is that, considering Mrs. Sykes’s limited view of the robber, and the long lapse of time and the many intervening events — including the photo array and the lineup — between the crime and the independent source hearing, it was impossible to find by the requisite clear and convincing evidence that the lineup would not influence her in-court identification (see United States v Wade, 388 US 218, 240 [1967]; People v Ballott, 20 NY2d 600, 606 [1967]).

2006His argument, essentially, is that, considering Mrs. Sykes's limited view of the robber, and the long lapse of time and the many intervening events—including the photo array and the lineup—between the crime and the independent source hearing, it was impossible to find by the requisite clear and convincing evidence that the lineup would not influence her in-court identification ( see United States v Wade, 388 US 218, 240 [1967]; People v Ballott, 20 NY2d 600, 606 [1967]).

1958The rule is well settled that a fiduciary ‘ ‘ is bound to employ such diligence and such prudence in the care and management, as in general, prudent men of discretion and intelligence in such matters, employ in their own like affairs.” (See opinion of Woodruff, J., in King v. Talbot, 40 N. Y. 76, 85-86 .) In ascertaining whether the 'acts of a fiduciary have been prudent within the meaning of the rule the courts must ‘ ‘ look at the facts as they exist at the time of their occurrence, not aided or enlightened by those which subsequently take place ” (Purdy v. Lynch, 145 N. Y. 462, 475-476 ); f

1947The standard of conduct exacted of him is one of reasonable, not the utmost amount of, prudence and diligence (King v. Talbot, 40 N. Y. 76, 85 ). (3) In determining whether, in a given case, a trustee )las acted with reasonable prudence and diligence, we must ‘ ‘ look at the facts as they exist at the time of their occurrence, not aided or enlightened by those which subsequently took place ” (Purdy v. Lynch, 145 N. Y. 462, 475-476 ). “ A wisdom developed after an event and having it and its consequences as a source is a standard no man should be.judged by.” (Costello v. Costello, 209 N. Y. 252

2023Here, contrary to the defendant's contention, the People proved by clear and convincing evidence at an independent source hearing that the witness's in-court identification of the defendant would be based on his independent observation of the defendant during the shooting and a prior encounter ( see People v Goondall , 173 AD3d at 898; People v Jenkins , 38 AD3d 566 ; People v Brown , 293 AD2d 686 ; People v Radcliffe , 273 AD2d at 484 ).

2019Here, contrary to the defendant's contention, at an independent source hearing, the prosecution proved by clear and convincing evidence that the complainant's in-court identification of the defendant would be based on his independent observations during the robbery ( see People v Jenkins , 38 AD3d 566 ; People v Brown , 293 AD2d 686 ; People v Radcliffe , 273 AD2d 483 ; People v Fuentes , 240 AD2d 511 ). "[I]n reviewing claims of ineffective counsel [a court must] avoid both confusing true ineffectiveness with mere losing tactics and according undue significance to retrospective analysis" ( Pe

2022The People also cite Burr ( 70 NY2d at 354 ) and urge that, even assuming the initial search was unlawful, evidence of the heroin would still be admissible under the independent source doctrine.

2022The People also cite Burr ( 70 NY2d at 354 ) and urge that, even assuming the initial search was unlawful, evidence of the heroin would still be admissible under the independent source doctrine.

2015Accordingly, the judgment must be reversed and a new trial ordered, to be preceded by an independent source hearing (see People v Gethers, 86 NY2d at 163 ; People v Dobbins, 112 AD3d 735, 738 [2013]; People v Breitenbach, 260 AD2d 389, 390 [1999]; People v Wong, 223 AD2d 568, 569 [1996]).

1999As the only evidence connecting the defendant to the crime was the complainant’s testimony, which included her description of the lineup identification and her in-court identification of the defendant, and no evidence of an independent source for the in-court identification was presented at the Wade hearing, the judgment must be reversed and a new trial ordered, to be preceded by an independent source hearing (see, People v Burts, 78 NY2d 20 ; see also, People v Matthews, 257 AD2d 635 ; People v Wong, 223 AD2d 568 ).

2015Accordingly, the judgment must be reversed and a new trial ordered, to be preceded by an independent source hearing (see People v Gethers, 86 NY2d at 163 ; People v Dobbins, 112 AD3d 735, 738 [2013]; People v Breitenbach, 260 AD2d 389, 390 [1999]; People v Wong, 223 AD2d 568, 569 [1996]).

2013As the only evidence connecting the defendant to the crime was the complainant’s testimony, which included his description of the lineup identification and his in-court identification of the defendant, and no evidence of an independent source for the in-court identification was presented at the hearing, the judgment must be reversed and a new trial ordered, to be preceded by an independent source hearing (see People v Breitenbach, 260 AD2d at 390 ).

2004However, applying the more appropriate independent source exception to the exclusionary rule, we find suppression of the physical evidence was not required here, because it was seized pursuant to a valid search warrant which was based upon sufficient untainted information obtained by the State Police prior to and independent of the illegal detention (see People v Arnau, supra at 33; see also Segura v United States, 468 US 796 [1984]; People v Silverstein, 74 NY2d 768, 769-770 [1989], cert denied 493 US 1019 [1990]; People v Burr, 70 NY2d 354, 361-363 [1987]; 35 Carmody-Wait § 172:3303 [2004]).

2004LaFave, Search and Seizure § 6.5 [c], at 365-367 [3d ed 1986].) While the Court was unanimous on the application of the independent source doctrine to these circumstances, it left open the question whether a warrantless entry to preserve evidence was an unreasonable seizure; the Court expressly declined to reach the question whether exigent circumstances were present because the government did not seek review of that issue. ( Segura , 468 US at 804 .){** 4 Misc 3d at 326 } Those issues were treated more recently in Illinois v McArthur ( 531 US 326 [2001]).

2024To accomplish this a court must hold a formal pretrial “hearing as to independent source” (People v Burts, 78 NY2d 20, 24 [1991]; see People v Marshall, 26 NY3d 495, 506 [2015]; Gethers, 86 NY2d at 163 ).

2020Inasmuch as the lineup was not unduly suggestive, an independent source hearing was not required ( see People v Marshall , 26 NY3d 495, 504 ).