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Decisions

Second Department Finds Officer's Testimony Incredible, Reverses Suppression Ruling

03/06/2019

Appellant Zabi Maiwandi was convicted of four counts of criminal possession of a controlled substance in the third degree, among other offenses, after various controlled substances were found in his car.  At the suppression hearing, an officer testified that he was parked about one and a half car lengths in front of appellant's car when, looking through his rear-view mirror and appellant's windshield, he saw appellant pass an object to a woman in the front passenger seat.  According to the officer, the object was eight inches long by two inches wide, and, based on its packaging, the officer believed it was Suboxone.  

The Second Department held that the officer's testimony was incredible because, inter alia, "common sense dictates that the dashboard of [appellant's] vehicle would have obscured [the officer's] view of a hand-to-hand transaction between the defendant and the front-seat passenger."  The court reversed the hearing court's ruling, suppressed the physical evidence, and -- because the remaing evidence would not be sufficient to prove appellant's guilt -- dismissed the indictment

Cynthia Colt briefed and argued the case on behalf of Appellate Advocates.