The attorney for DaShawn Butler -- the Batavia resident accused of firing gunshots at a person on State Street last September -- has filed a motion to have the charges against Butler dismissed because, he said, his client's rights have been violated.
Attorney Thomas Burns argued in court this morning that information about two witnesses wasn't available to him before a grand jury hearing on the case, and that the lack of information under those circumstances is so egregious that the case should be dimissed "in the interest of justice."
District Attorney Lawrence Friedman countered that the information was available in the City Court case file and that even if the witness had been made available to testify, their testimony would not have helped Butler's defense.
Burns also requested a hearing on the timeliness of Butler's arrest in December. Burns contends that the police had ample opportunity to locate and arrest Butler after he was named as a suspect in the shooting because Butler never left town.
The lack of due diligence, Burns told Judge Robert C. Noonan, means there was a violation of his client's right to a speedy trial.
Noonan scheduled the hearing for 3 p.m., Aug. 27. He is reserving his decision on dismissal motions by Burns.
According to Burns, there are three witnesses he didn't know about before the grand jury presentation. Two, he said, initially said the shooter the night of Sept. 27 was white and a third said the alleged victim was the shooter.
Burns said there was only an incomplete report in the City Court file prior to the hearing, which is why didn't know about these witnesses.
He questioned why the police waited weeks to interview the witnesses.
Friedman called the initial statements attributed to the witnesses "double hearsay." He said the investigators were simply doing what good cops do, an investigation when they went out to find the witnesses and try to find out what they actually saw.
Once they were actually interviewed -- rather than the police just getting information from intermediaries -- they described the shooter as black and the other did not name the victim as the shooter.
He said the information was in the City Court file prior to the grand jury hearing.
In June, Butler entered a not guilty plea to counts of criminal use of a firearm, 2nd, a Class C violent felony, criminal possession of a weapon, 2nd, a Class C violent felony, and attempted assault, 1st, also a Class C violent felony.
He is out of jail on $25,000 bail.
