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Murder case sent back to trial judge

Decision never reached on suppression issue

By: Bennett Loudon//July 16, 2019

Murder case sent back to trial judge

Decision never reached on suppression issue

By: Bennett Loudon//July 16, 2019//

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A state Supreme Court justice must decide on an unresolved issue before an appellate court can reach a final decision on an appeal of a murder conviction.

Terrol Massey, 30, was convicted in April 2007 in Buffalo of second-degree murder, second-degree conspiracy, and fourth-degree criminal possession of a weapon.

He was sentenced to 20 years to life in state prison by state Supreme Court Justice Penny M. Wolfgang.

In a decision released June 28, the Appellate Division of state Supreme Court, Fourth Department, explained that the trial court never ruled on the question of whether police had probable cause to arrest Massey.

The first judge assigned to the case held a joint Huntley hearing to determine if Massey’s statement to police was voluntary, as well as a Dunaway hearing to determine if police had probable cause to take him into custody.

That judge prepared findings of fact on both issues, but he retired without making any rulings.

The case was then assigned to Wolfgang, who denied a defense motion to suppress Massey’s statement to police, based on the findings of fact prepared by the first judge. But she never made a decision on the Dunaway issue.

“There was no decision whether there was probable cause to arrest him, take him to the police station where he was questioned and then made the statement,” said Barbara Davies, Massey’s appellate attorney.

The Fourth Department panel wrote in the June 28 decision that they have the authority to review that question because it was not yet decided by the trial judge.

“Consequently, as the People correctly concede, we may not resolve defendant’s contentions regarding the Dunaway issue, which was never addressed by the court,” according to the decision.

Therefore, the case was sent back to Supreme Court to decide if the statements should be suppressed “as the fruit of an illegal detention or arrest,” the Fourth Department wrote.

The case is scheduled to go before state Suprme Court Justice M. William Boller on July 23.

Boller will review the finding of facts and the transcript of the Dunaway hearing to make a decision on the probable cause issue. That decision will then go back to the Fourth Department to be reviewed.

The Erie County District Attorney’s Office declined to comment on the decision.

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