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United States v. Diaz

United States District Court, Second Circuit

October 22, 2013

UNITED STATES OF AMERICA, Plaintiff
v.
IRIS DIAZ Defendant.

ORDER

CHARLES J. SIRAGUSA, District Judge.

This case was referred by text order of the undersigned, entered on January 16, 2013, to Magistrate Judge Jonathan W. Feldman pursuant to 28 U.S.C. § 636(b)(1)(A)-(B), ECF No. 35. On May 9, 2013, Defendant filed an omnibus motion, ECF No. 65, seeking inter suppression of the result of an identification procedure used by law enforcement on May 10, 2012. On June 21, 2013, Judge Feldman issued an Order resolving all matters except for Defendant's application to suppress the identification procedure at issue. That procedure involved Defendant's identification by a confidential informant from a photo array. On July 10, 2013, Judge Feldman conducted a suppression hearing to determine the admissibility of the identification procedure. At the conclusion of the hearing, Judge Feldman issued an oral Report and Recommendation ("R&R") recommending that Defendant's motion to suppress the identification be denied. On July 11, 2013, Magistrate Judge Feldman filed a written R&R, ECF No. 83, confirming his oral determination made in court the day before. Defendant timely filed objections to the R&R on September 13, 2013[1], ECF No. 104, arguing that the photo array utilized by law enforcement on May 10, 2012, from which the confidential informant made the identification, was unduly suggestive. Defendant also objected to Judge Feldman's June 21, 2013 Decision and Order ("D&O"), ECF No. 75, [2] denying Defendant's request for earlier disclosure of the confidential informant. More specifically, Defendant objects to Judge Feldman's D&O that informant disclosure be made no earlier than two weeks prior to trial or pretrial conference whichever comes first.

As to Defendant's objections to Judge Feldman's findings and recommendation on his motion to suppress the identification procedure, pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the R&R to which objections have been made. Upon a de novo review of the R&R, including a review of the transcript of the suppression hearing held on July 10, 2013 and the photo array at issue, as well as Defendant's objections, this Court accepts the proposed findings and recommendation.

With respect to Defendant's objections as to Judge Feldman's D&O denying earlier informant disclosure, pursuant to 28 U.S.C. § 636(b)(1)(A), this Court must determine whether Judge Feldman's determination was clearly erroneous or contrary to law. Upon a consideration of the D&O, and after considering Defendant's objections, the Court finds that Judge Feldman's D&O denying Defendant's request for a informant disclosure was neither clearly erroneous nor contrary to law

Accordingly, for the reasons set forth in Magistrate Judge Feldman's R&R, ECF No. 83, in which he confirmed his oral determination of July 10, 2013, Defendant's application to suppress the May 10, 2012 identification procedure is denied.

Additionally, as indicated above, the Court finds that Judge Feldman's D&O denying Defendant's request for further informant disclosure is neither clearly erroneous nor contrary to law

IT IS SO ORDERED.


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