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PEOPLE v. FABRIZIO ESCALENTE, DAVID ALACHE and LUIS CASTILLO

Loading dock did not give rise to privacy expectation in seized cartons of cigarettes.

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Defendants seek the suppression of some 8,000 cartons of cigarettes seized at a public loading dock in a U-Haul commercial storage facility, located at 230 West 230th Street, Bronx County. They are charged with Criminal Possession of Stolen Property in the Second Degree (Penal Law Section 165.52), and other related charges.

At a Mapp hearing, the People called Det. Frances Murnane. His testimony established that a certain video tape and digital photographs of the incident, taken by the New York City Police Department, were lost. Consequently, defendants made oral application for further relief, contending that the aforesaid loss constituted a “spoilation of evidence” which required dismissal of the indictment. Only defendant Alache presented a written memorandum of law in support of this position. In light of the foregoing, the Court broadened the already commenced Mapp hearing to include testimony concerning the lost evidence.

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