People v. Wilmer

Criminal Practice

New York Law Journal

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Justice Alexander Tisch

Wilmer moved for dismissal of the accusatory instrument on facial sufficiency grounds. He was charged with several counts of assault in the third degree, among other things. The complaint asserted Wilmer, a bus driver, struck complainant pedestrian in a retaliatory action then fled the scene. Wilmer argued the accusatory instrument contained statements made and referenced actions by his counsel, which identified Wilmer as the driver to police, constituting impermissible hearsay, and should be barred by attorney-client privilege. The court disagreed finding the factual allegations amply supported a finding of facial sufficiency. It stated the information provided by Wilmer's attorney to identify Wilmer qualified as an admission against interest by Wilmer's agent, which was an exception to the hearsay rule. Further, it noted that no privilege attached to counsel's voluntary communications with police. Thus, the court stated as the accusatory instrument provided reasonable cause that Wilmer committed the offenses charged and factually established every element of the charged offenses, it found the instrument was facially sufficient, denying Wilmer's motion to dismiss.

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