A Nassau judge must decide if a police witness could be allowed to testify that Maxwell Sherman was the man he saw straddling a woman's body on a Rockville Centre footbridge shortly before an 18-year-old slaying victim was found there.
Sherman, 19, has pleaded not guilty to murder and sexual abuse charges in the Aug. 22, 2013, death of Lauren Daverin-Gresham of Lynbrook. His trial is expected to start next month.
At a hearing Wednesday in Mineola, acting state Supreme Court Justice Meryl Berkowitz heard opposing arguments about whether that witness' identification of Sherman was a positive one, and if it resulted from a police photo array that was "unduly suggestive."
If the judge finds the police procedure was proper, witness Rodney Reed could come to court and potentially pick out Sherman as the person he spoke to while biking through what became a crime scene.
But defense attorney William Petrillo argued Sherman was the only person shown looking away from the camera in the photo array Reed saw. He also called Reed's account implausible. He said Reed didn't give police information about what he saw while at the crime scene. Two days later, Reed came forward with a sketch he drew of the man from the footbridge and looked at the photo array. Petrillo said Reed also knew the victim.
The defense attorney claimed Reed's comment that it "definitely looks like the guy" when picking Sherman out of the array didn't equal a positive ID.
However, Assistant District Attorney Everett Witherell argued that while police don't do "a casting call" before a photo array, officials used photos of similar-looking people in the array and it was fair.
He also opposed the defense's appeal to suppress Sherman's statements and other evidence that resulted after authorities said Sherman consented to giving DNA and hair samples, while also letting police examine his bicycle and duffle bag.
The prosecutor said that on Aug. 23, Sherman spoke to police "of his own free will," wasn't handcuffed, and even ripped hair out of his arm to give one of the samples. When police brought Sherman in on Aug. 24, they read him his rights again and he didn't ask for a lawyer, Witherell said.
The prosecutor also argued that while Sherman told police "I'm not looking to speak to you," that didn't mean the defendant had met the legal standard of unambiguously invoking his right to stay silent.
In contrast, Petrillo argued for suppression of his client's statements to police and evidence resulting from the consent forms he signed. He said the questioning "turned into a custody situation" where police took Sherman's property and he didn't feel free to leave -- meaning his consent was involuntary. The Garden City attorney also claimed police didn't have probable cause to arrest Sherman a day later after what he called an unreliable ID from Reed.
The judge set the next court date for March 23, when her decision is expected.