The opinion of the court was delivered by: CHARLES S. HAIGHT, JR.
The indictment in this case charges defendant with counts of mail theft, armed assault of a United States Post Office letter carrier, possession of stolen mail and the use of a firearm during and in relation to a crime of violence. Trial is presently scheduled for December 6, 1993 before Judge DiCarlo.
Defendant was arrested by the New York City police on May 14, 1993 after allegedly attempting to cash a stolen check with a female accomplice. After receiving Miranda warnings and signing a written waiver of rights form, defendant signed a written statement admitting his knowledge that the checks were stolen. United States Postal Inspectors became involved when shortly after his arrest the New York City police contacted them about the potential theft of United States mail.
William McPaul, a letter carrier who was robbed on April 26, 1993 and again on May 8, 1993, was shown a photo-array containing six pictures, including one of the defendant, on May 17, 1993. McPaul identified the defendant as one of the men who robbed him on both occasions. On May 21
, 1993 the defendant was arrested by federal authorities. While in custody, defendant complied with the authorities' request to provide handwriting exemplars.
Defendant has moved for several forms of relief: (1) suppression of statements made after his arrests on May 14 and on May 21; (2) suppression of the pre-trial identification by McPaul and any in-court identification by McPaul of the defendant at trial; (3) suppression of the handwriting exemplars provided by defendant; and (4) an order directing the government to provide defendant notice of any extrinsic acts evidence it will seek to introduce at trial.
Suppression of Defendant's Statements
Defendant's memorandum asserts that although he recalls receiving Miranda warnings on both May 14 and May 21, he did not "knowingly waive [his] rights before answering questions" because his lack of a "sophisticated understanding of the criminal justice system despite a fairly large number of arrests prior to the current charges" prevented him from understanding what the "rights entailed." Defendant's Memorandum at 3. Defendant also argues that he was denied his right to confer with counsel retained on his pending state forgery charges before waiving his Miranda rights on after the May 21 arrest.
The government represents that it will not seek to introduce at trial any statements made by the defendant after his arrest on May 21, 1993. See Government's Memorandum in Opposition at 5. The government will be held to this representation and is precluded from admitting any such statements in its case-in-chief. Accordingly, whether or not defendant's rights were knowingly waived and whether defendant was denied his right to confer with counsel prior to making statements on May 21, 1993 need not be addressed by the Court. Whether defendant knowingly waived his rights before the May 14, 1993 statements, however, could present a factual issue to be determined in an evidentiary hearing given, that the government has not indicated that it does not intend to introduce such statements.
Ordinarily the failure of defendant to submit an affidavit by anyone with personal knowledge of the underlying facts makes such a hearing unnecessary. The only affidavit filed in support of the motion is an affidavit by his attorney, Mitchell Golub, who does not claim to have personal knowledge of the facts. It is well established that "without a supporting affidavit of someone with personal knowledge of the underlying facts, the court need not resolve factual disputes that may be raised by the moving papers." United States v. Caruso, 684 F. Supp. 84, 87 (S.D.N.Y. 1988); see also United States v. Gillette, 383 F.2d 843, 848-49 (2d Cir. 1967); United States v. Gregory, 611 F. Supp. 1033, 1044 (S.D.N.Y. 1985) (Weinfeld, J.). As defendant has "failed to meet his initial burden of making specific factual allegations of illegality," Gregory, 611 F. Supp. at 1044, no hearing is necessary on the present record.
As a practical matter, however, Richardson can remedy the delinquency by attesting to the accuracy of counsel's affidavit. In order that the case be made trial ready for Judge DiCarlo, I will hold a hearing on November 24, 1993 at 10:00 a.m. in Room 307. If Richardson is prepared to attest ...