May 16, 2018

CRIMINAL LAW UPDATE: “Yo, it was Twanek, Man!”

CRIMINAL LAW UPDATE: “Yo, it was Twanek, Man!”

One afternoon, three men were on the corner of 129th St. and St. Nicholas Terrace when then another man pointed a gun and shot at them hitting one in the hand and leg, the second in the leg, and the third in the buttocks. The gunman briskly got into a minivan, which sped off. Within five minutes, a 911 call was made anonymously. About 20 seconds into the call, someone in the background on the 911 tape can be faintly heard saying, "Yo, it was Twanek, man! It was Twanek, man!" A woman in the assembled crowd provided the police with a partial license plate number for the minivan. An officer spotted and stopped a minivan matching the description and partial license plate a short distance from the crime scene, at which point both the driver and passenger exited the vehicle. The officer stayed with and arrested the driver, but the passenger — the suspected gunman — slipped away.

Twanek’s fingerprint was subsequently found on the passenger door of the minivan, and cell site data is consistent with his presence in the area at the time of the shooting. The People asserted that Mr. Cummings left the state soon after the shooting, returning a few days later. No weapon was recovered, and the shooting victims failed to identify Mr. Cummings in a lineup. Surveillance video shows someone running away from the scene and entering the minivan immediately after the shooting, and several people hurrying towards the scene moments later. The surveillance video does not show the scene of the shooting. Neither the shooter nor the person saying, "It was Twanek, man," can be identified from the video. Twanek went to trial and was convicted anyway. Twanek’s attorney appealed arguing that the voice naming Twanek on the 911 tape should not have been admissible. 

The Court agreed and Twanek gets a new trial without the 911 tape. Here is why: Anonymous 911 calls are admissible if the court can reasonably infer from the circumstances that the unidentified speaker heard on the 911 call, personally observed what they are reporting. For example a crime in progress. In this case, the person heard in the background naming Twanek gave no indication that they saw anything at all.

Here is the case: http://www.courts.state.ny.us/reporter/3dseries/2018/2018_03306.htm

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