EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, November 24, 2011

The Space Between: Judge Takes Judicial Notice Of Google Maps Distance In Mob & Thanksgiving Related Case

Judicial notice is a doctrine of evidence applied by a court that allows the court to recognize and accept the existence of a particular fact commonly known by persons of average intelligence without establishing its existence by admitting evidence in a civil or criminal action. Federal Rule of Evidence 201(b) provides that

A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

So, let's say that a member of a crime family is charged with several crimes, including conspiring to kill a victim. And let's say that the defendant claims that the prosecution erred by failing to disclose to him police reports that contradict testimony given by a key witness for the prosecution regarding exactly where the the victim was on the day of the murder. Can the court take judicial notice of the distance between 2 locations based upon a search on Google Maps? According to the recent opinion of the United States District Court for the Eastern District of New York in United States v. Sessa, 2011 WL 256330 (E.D.N.Y. 2011), the answer is "yes."

In Sessa, the facts were as stated above, with Michael Sessa of the Colombo organized crime family of La Cosa Nostra being the defendant. One alleged intended victim of the crime family was Billy Cutolo, a captain in the Colombo Family aligned with the Orena Faction. Specifically, Sessa and others
planned to murder Cutolo on Thanksgiving Day....[cooperating witness Joseph] Ambrosino testified that he, [Sessa], and [fellow crewmember Larry] Fiorenza "were going to dress up as Hasidic Jews in costumes and murder [Cutolo] in front of his girlfriend's grandmother's home in Brooklyn, [at] 60th Street and 13th Avenue."....As the "neighborhood that [Cutolo] was going to was an Hasidic neighborhood, [[Sessa], Ambrosino and Fiorenza] figured [they] could blend in with the crowd."...[Sessa] instructed Ambrosino to give six hundred dollars to [crewmember Anthony "the Arab"] Sayegh so that he could purchase costumes from a store in Brooklyn, and the costumes were stored at Fiorenza's girlfriend's home, where she testified to seeing them....However, on Thanksgiving morning, a New York Post article implicated [Gregory] Scarpa [a made man of the Colombo family] as a government informant, and fearing that Scarpa "knew about the plan and if he was cooperating he would tell the law what [they] were going to do," [Sessa] called off the murder.  

Sessa, however, apparently did not call off the murder of crewmember Anthony Coluccio. At trial, Ambrosino testified about Coluccio arriving at 13th Avenue and 69th Street at 3:00 p.m., the day that he was murdered, while another witness told police that Coluccio left a McDonalds restaurant at 4th Avenue and 39th Street at 3:30 p.m. on the day of the murder.

The prosecution, however, did not turn over police reports containing this witness' statement. According to Sessa, these reports were material and the prosecution's faulure to disclose them constituted a Brady violation. The Eastern District of New York disagreed, concluding that "[a]s the locations are merely a few miles apart, the minor inconsistencies in timing are not sufficiently material to raise a reasonable probability of a different result had they been introduced at trial."

As support for this proposition, the court noted that the distance between the two locations

was calculated by reference to Google Maps. See http://maps.google.com/maps [last checked January 23, 2011]. A court may take judicial notice of facts that are "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed.R.Evid. R. 201(b). "Courts commonly use internet mapping tools to take judicial notice of distance and geography." 



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