The People also cite CPL 440.10 (3) (a), which allows a court to deny a 440.10 motion where a defendant does not use due diligence to create a record prior to sentencing which would allow a defendant's claims to be determined on a direct appeal. As noted supra, this case involved a shooting of four individuals in a car in the early morning hours of September 13, 1999: Shane Kerr, Lendell Kerr (his brother), Marcus McLaughlin and Zenobia Penn. The individual he observed shooting from the passenger side of the Sable, he also said, had been wearing a white t-shirt. I didn't see someone take their jacket off and that's the truth. Footnote 1: See Walters Affirmation, attached to Defendant's original post-judgment motion, May 31, 2006, ¶ 3. The statute simply provides that a defendant has the right to be present at the hearing, that the defendant bears the burden of proving facts asserted by him by a preponderance of the evidence and that the Court must make findings and conclusions following the hearing. Before recounting the evidence which was presented at the CPL 440.10 hearing, an initial evidentiary issue which was raised by the People in their oral argument after the hearing should be addressed. People v. Turner, 5 NY3d 476, 480 (2005). The first was that in her initial examination of the .40 caliber weapon she did not take the weapon completely apart so there may have been a small amount of tin in the weapon which she had not detected. The People submitted an affirmation and memorandum of law opposing the Defendant's Supplemental Motion on August 10, 2010, a little more than three years after the Defendant's motion was filed. Had Worm put the burner in his mouth and then got pistol whipped and stripped by the Ghetto Inmates when he was recording for that Soul a*sassins album The facts underlying these convictions are outlined in detail infra. Ms. Lunde was then asked to explain the "Locard exchange principle" to the jury. She also found particles of tin "which is not something that is commonly found in gunshot residue, produced by the discharge of American made ammunition. He said that police officers Anselmo and Polstein, Shane Kerr, Zenobia Penn and Mr. Azziz were in the best position to see the events which transpired. As Defendant acknowledges in his Instant Motion, the standard an attorney must meet in order to provide effective assistance is "a very tolerant one" which may include "significant mistakes". She also put the first gun tested away and "removed anything associated with" that weapon prior to setting up a clean area for the testing of the other weapon. This information was relevant to determine whether the lab employed valid methods of testing. He said that the fact that there were significantly more GSR particles on the right sleeve and right front of the jacket than on the jacket's left side was significant because that is what would be expected from the GSR plume ejected from a gun. In the Court's view, there was no reason for Mr. Walters not to have Dr. Kubic present during the examination of the State's GSR witnesses and consult with him prior to cross-examining those witnesses. Dr. Kubic stated that the intricacies of GSR evidence could not be learned over a couple of phone calls or meetings lasting up to three hours. Dr. Kubic opined that jurors expected to hear scientific evidence. Footnote 67:Id., p. 121, l. 11. Officer Anselmo observed both suspects under a floodlight. She recalled that there were about six men wearing white colored clothing and a "lot of Coogi sweaters". [This obviously highlighted the contamination concerns related the placement of the jacket on the precinct room floor].- She testified that although her testing of the 9 mm Glock and the jacket was consistent with a person wearing the jacket and firing the gun, it could also be consistent with someone being in the "vicinity of someone that was firing the gun". Finally, when he was asked whether tin was a common element found in American made ammunition, Dr. Kubic demurred, saying that he was not an expert in that field. Dr. Kubic, in his hearing testimony, also did not indicate that he had any evidence to offer on that issue. [FN50] His testimony was then taken. You have an exception.Q: Madam, your expertise is in forensics; correct?A: Yes.Q: And part of forensics is the collection or proper collection of evidence; correct?A: It's not something that I do on a general basis but I am aware of the proper [*14]procedures.Q: And looking at that jacket and you being aware of proper procedures, what would you say about the procedure that you see in that picture?The Court: All right. Mr. Rodriguez stated that Mr. Walters did not respond to this offer. The letter indicates that Mr. Zeno was anticipating a response from the People to his Supplemental Motion. The two of them proceeded to wait for Lendell Kerr inside his vehicle. That section, however, explicitly excludes motions alleging the ineffective assistance of counsel at trial, the primary basis of Defendant's motion here. . The testimony which Mr. Davis recanted during the hearing simply corroborated the fact that the Defendant took off and discarded his jacket during the chase. Justice Torres apparently believed, however, that it was beyond the scope of her professional expertise to render an opinion about the proper procedures which should have been followed by the police to avoid the potential GSR contamination of the Defendant's jacket. Please answer the question please.A: Repeat the questionQ: Didn't you just say that you testified to a fact that wasn't true at the trial?A: No.Q: You didn't say that? Justice Edwin Torres, who retired from the bench at the end of 2007, presided over this third trial. "[FN23] Assuming it was just taken in and out of the bag he said he would expect the jacket to have retained some of the gunshot residue particles. He testified that he holds a B.A. People v. Williams, 11 AD3d 810 (2004), lv denied, 4 NY3d 769 (2005). Mr. Nuzzi said that, at a minimum, it was undisputed that the person whom Officer Anselmo shot was the same person, Mr. Adams, who was apprehended. He initially said the shooter without the white t-shirt was "like six feet tall" but then said, in response to whether the shooters were both six feet tall: "Yes, something. At the time of the shooting, Mr. Davis lived in an apartment overlooking the area where Officer Anselmo testified he chased the Defendant. That is not to say that the doctrine which the Ortiz court articulated should be given unlimited application. Mr. Kerr was planning to drive them to the bus station. In order to minimize cross-contamination, each sample is examined separately under sterile conditions with testers wearing lab coats and gloves. Sherm The Worm is a man from Queensbridge who was closely connected with with fellow QB legends like Lakey, Nut, and Cormega. These claims are analyzed in two parts. Footnote 20:Id., p. 892, l. 25- p. 893, ll. Mr. Davis said the information he testified to at trial came from the detectives. Failure to Call Dr. Kubic as an Expert Witness. He said that Shane Kerr said he was drunk and also likely had a blood alcohol level close to .08%. TJ Vasher Lyrics: When you blowing niggas out, they wanna team up / I'm in a city near you, with some heat tucked / Grade A dick, my bitch titties D plus / Every shot we put up good, bitch we Dr. Kubic's point about the differences between a floor to fabric and a fabric to fabric transfer are fair enough. External proficiency testing involves tests prepared by outside laboratories where the results of the test are already know. Cathleen Lunde testified that during 2001 she was employed as a member of the materials analysis unit of the FBI laboratory where she had been working since January of 1986. Thus, this section, in the Court's view, also is not applicable here. He said that in collecting the jacket at the scene the police took no precautions to prevent GSR contamination because at the time there was no thought to collecting GSR evidence. He was at this point interrupted sua-sponte by the Court who said: "Why are you impinging on my area. This involved a group of males exchanging looks with Mr. McLaughlin and backing up as if in anticipation of a conflict. Footnote 54:Id., p. 63, l. 11. As part of her work Ms. Lunde performed comparative bullet lead analysis as well as gunshot primer residue analysis. [FN7] Mr. Kerr described the men as wearing "Coogi sweaters, white t-shirts, jean suits".[FN8]. [FN29] He could only say that the jacket had been in an area where GSR was present. Footnotes This was a shot in the night. Mr. Schwoeble testified to having received the 13 samples taken by the FBI of the denim jacket alleged to have been worn by the Defendant, three spent cartridge casings, a 9mm firearm, a .40 caliber firearm and the denim jacket itself. From the Album My Fabulous Plum April 7, 2017 $1.29 Start your 30-day free trial of Unlimited to listen to this song plus tens of millions more songs. In his sworn affidavit, however, while acknowledging that he had heard shots from his apartment, he recanted virtually all of the remainder of his trial testimony stating: "I was interviewed by Detectives to see if I had any knowledge of the events of the shooting. "- He acknowledged that his study of fabric to fabric transfers had not been completed, was ongoing and had not yet been peer reviewed.- He admitted that he had not conducted any studies relating to the presence of airborne GSR in police gathering rooms.- He admitted that the premier organization in his field was the American Academy of Forensic Scientists and that he was not a member.- He acknowledged that if a person fired a weapon and then picked up a jacket, GSR from that firing could be transferred to the jacket. Although he had discussions with the Defendant, Ms. Robertson and Dr. Kubic prior to the commencement of [*30]Trial 3 with respect to attacking the GSR evidence, Mr. Walters was unable to recall his decision-making process in not presenting such evidence at Trial 3. Engaging in a "battle of the experts" by reading the prior testimony of Dr. Whitehurst, however, and juxtaposing that with the live testimony, exhibits and graphs presented by of Ms. Lunde and Mr. Schwoeble might have been less than compelling. in chemistry from C.W. Her conclusions, however, were significantly impeached during her testimony at trial. After viewing product detail pages, look here to find an easy way to navigate back to pages you are interested in. [FN28] Mr. Schwoeble agreed that the American Academy of Forensic Scientists was the top forensic science organization and that he was not a member. He had been a practicing attorney for 16 years, had worked in the district attorney's office, predominantly represented clients in criminal cases and had handled more than 10 homicide cases. Mr. Schwoeble stated that he was employed by the R.J. Lee Group for the past 18 years as the manager of the Forensic Sciences Department. Mr. Casolaro:And that was because why? The People also, moreover, presented detailed facts supporting their contention that their witnesses provided more reliable identification evidence than Shane Kerr or other defense evidence. "[FN69] Having reviewed Dr. Kubic's instant hearing testimony and affidavit, however, his testimony, in the Court's view, would not have resulted in a proper ruling that the GSR evidence should have been excluded. 2-3. Mr. Azziz identified the jacket as belonging to the shooter. Misdemeanor charge was pending against her at the hearing jacket hanging from a fence post, right-side.! 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