People v. Bostic

• Decision Date: 08 December 1978
• Citation: 97 Misc.2d 1039,412 N.Y.S.2d 948
• Parties: The PEOPLE of the State of New York, v. Clifford R. BOSTIC, Defendant.
• Court: New York District Court

Page 948

412 N.Y.S.2d 948

97 Misc.2d 1039

The PEOPLE of the State of New York, v. Clifford R. BOSTIC, Defendant.

District Court, Nassau County, First District, Criminal Part IV.

Dec. 8, 1978.

Denis Dillon, Dist. Atty. of Nassau County, Mineola, by Diane Recio, Asst. Dist. Atty., New Hyde Park, for the People.

James J. McDonough, Legal Aid Society of Nassau County, by Myron Martynetz, Mineola, for defendant.

HAROLD FERTIG, Judge.

On September 29, 1978 defendant made an omnibus motion for a Bill of Particulars, an order of discovery, names of trial witnesses and for Brady material. He also included in that motion a request that certain evidence seized be suppressed and, in effect, requested a suppression hearing.

The People, on October 11, opposed the defendant's motion by submitting an affidavit in opposition, setting forth a Bill of Particulars stating that there were no scientific tests conducted and arguing that the names of the witnesses were not discoverable. The People also indicated that they had no knowledge of any material exculpatory in nature which would be subject to the rule set forth in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215.

The People consent to a suppression hearing on the basis of probable cause and further state that the defendant had made no motion for a Huntley hearing, although a notice of a statement made by the defendant had been served on him. They allege, however, that the defendant had made a spontaneous declaration, "All this for two coats?" They argue that because of the spontaneous nature of this statement a Huntley hearing is not required to determine the voluntariness of that statement.

The defendant has moved for an order precluding the People from using the aforesaid statement on the grounds that the notice that was given to the defendant at the time of arraignment on September 19, 1978 was a general form of notice and did not comply with the requirements of Section 710.30 C.P.L., in that it did not specify the evidence intended to be offered.

The questions remaining to be decided by the Court are: First, is a hearing necessary where a statement is claimed to be "Res gestae " and is notice required for such a statement, and second, whether or not the statement was part of the Res gestae, was the general notice given to the defendant sufficient to comply with the requirements of Section 710.30 C.P.L.

In 1964, in the case of People v. Quarles, 44 Misc.2d 955, 960-61, 255 N.Y.S.2d 599, 603-604, the Court determined that a defendant as a matter of right was entitled to obtain a copy of the transcribed statement made by the defendant to the police or District Attorney at the time of his arrest in order for the defendant to properly enable him to prepare a defense in accordance with the dictates of a fair trial. The Supreme Court in that same year in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, determined that a defendant is entitled to a fair hearing "in which both the underlying factual issues and the voluntariness of the confession are actually and reliably determined."

The following year, the Court of Appeals in People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 provided that "the prosecutor must, within a reasonable time before trial, notify the defense as to whether any alleged confession or admission will be offered in evidence at trial. If such notice be given, the defense, if it intends to attack the confession or admissions as involuntary, must in turn notify the prosecutor of a desire by the defense of a preliminary hearing on such issue (Cf. C.P.L. Section 813-C)."

In determining the meaning of the statute, it is important that the Court review the overall intent and purpose of the notice and the procedures following the notice. In People v. Mirenda, 23 N.Y.2d 439, 297 N.Y.S.2d 532, 245 N.E.2d 194, the Court of Appeals stated: "As we said in People v. Ross, 21 N.Y.2d 258, 287 N.Y.S.2d 376, 234 N.E.2d 427, the 'obvious purpose of the statute is to give a defendant adequate time to prepare his case for questioning the voluntariness of a confession or admission.' " Then, in People v. Chirico, 61 Misc.2d 157, 305 N.Y.S.2d 237, also decided in 1969, the Court determined that there are ". . . no statutory provisions in effect permitting a copy of the alleged confession or admission to be given to the defendant or his counsel." "It is the opinion of this Court, however . . . that the People are compelled to furnish a defendant or his counsel, prior to trial, a copy of any statement, confessions or admission made by a defendant at the time of his arrest, in the absence of counsel, Whenever the defendant or his counsel request a copy thereof" (Emphasis supplied).

Also, in 1969, it was decided in People v. Bach, 33 A.D.2d 560, 305 N.Y.S.2d 677, that several trial judges had written well reasoned opinions which concluded that a defendant Upon demand was entitled to obtain a copy of any confession or statement made by him in order to insure a fair hearing and a fair trial.

The very purpose of the statutory requirement for notice is to offer a defendant an opportunity for a hearing to determine the voluntariness of his confession or admission and it is not intended as a discovery device (People v. Harris, 25 N.Y.2d 175, 303 N.Y.S.2d 71, 250 N.E.2d 349).

In the following year, 1970, in the case of People v. Remaley, 26 N.Y.2d 427, 311 N.Y.S.2d 473, 259 N.E.2d 901, the defendant was given a copy of his confession during the course of a Huntley hearing and it was held that the defendant was entitled to inspect any statement which he may have made to the police or law enforcement officers, in order for him to intelligently prepare his defense. In that case there was a motion made by the defendant prior to the hearing for an inspection of his statement, which was denied. The Court held that that denial, although it should have been granted, may not be said to have been prejudicial since the defendant's lawyer was furnished a copy of his statement on the day before the trial began.

Then, in a decision by the County Court of this county (People v. Utley, 77 Misc.2d 86, 353 N.Y.S.2d 301), decided in 1974, the Court declared: "The public policy of this state abhors the use of incriminatory statements without first giving sufficient notice to the defendant and granting him an opportunity, prior to litigation, to investigate and plan his defense accordingly." The case involved a demand by the defendant for an order of discovery as to any oral or written statements made by the defendant. The defendant was served with a general notice that pursuant to Section 710.30 of the Criminal Procedure Law the People intended to offer evidence of an oral and/or written statement made to a public servant. There were no specifics set forth. The language, although not identical, was substantially the same as that set forth in the notice presented to the defendant in this case. The statute (Section 710.30 C.P.L.) at that time did not require that the notice be served within 15 days after arraignment but rather that the notice be served "before trial." It did, however, contain the same language in subdivision 1 of that section as in the present statute: "They must serve upon the defendant a notice of such intention, specifying the evidence intended to be offered." The Court held that the generalized form of notice must be supplemented where the defendant demands disclosure of his statements and further went on to state that the defendant is entitled to the substance of his oral statements and the particulars as to when, where and to whom they were made. The Court reasoned that the statute codified the doctrine laid down in People v. Remaley, supra, that defendant upon request is entitled to pre-Huntley disclosure.

The Court of Appeals, in People v. Briggs, 38 N.Y.2d 319, 379 N.Y.S.2d 779, 342 N.E.2d 557, cited People v. Utley, supra, with approval, and went on to state that independent of considerations of challenging the voluntariness of his statements, considerations of fair play demand that a possibly unaware defendant be apprised before trial of any incriminating statements intended to be offered against him. The Court also reasoned that often a defendant himself might be aware of a prior statement or the likelihood that the prosecutor might offer that statement. However, there is a reasonable probability that he may not be aware of such statement and a probability of his counsel's unawareness.

And so it has been repeatedly held that the purpose of...