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GIVEN THE INITIAL LACK OF DISCLOSURE BY THE PEOPLE AND DEFENDANT’S RESPONSES ONCE THE PEOPLE DISCLOSED THE TRANSMISSION WHICH LED TO HIS ARREST, DEFENDANT ALLEGED SUFFICIENT FACTS TO WARRANT A MAPP/DUNAWAY HEARING (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant had alleged sufficient facts to warrant a hearing on whether the police had probable cause to arrest him:

… [D]efendant’s motion challenged the constitutional adequacy of “any transmitted description on which the seizing officers relied in detaining and arresting the defendant.”

Defendant’s access to information was limited, because … the People … did not disclose “by either voluntary discovery or otherwise, . . . the description radioed by the purchasing officer to the arresting officer” … . Indeed, … the People did not even specifically aver that such a communication occurred. … [T]he absence of factual allegations regarding the content of a transmission from the undercover to the arresting officer did not render defendant’s motion deficient. …

[D]efendant made allegations of facts within his knowledge that … were pertinent to defendant’s argument that probable cause to arrest him was lacking. … [D]efendant described his own appearance at the time of arrest to the extent of stating that he was a 44-year-old black man, and that there was nothing “particularly distinctive about his appearance” that would tend to “preclude the possibility of misidentification.” This description allowed for a comparison between defendant’s self-description and the transmitted description, once that description was disclosed. People v Fleming, 2022 NY Slip Op 00360, First Dept 1-20-22

 

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