People v. Centeno

• Decision Date: 15 November 1995
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Daniel CENTENO, Defendant.
• Court: New York Supreme Court

Page 254

637 N.Y.S.2d 254

168 Misc.2d 172

The PEOPLE of the State of New York, Plaintiff, v. Daniel CENTENO, Defendant.

Supreme Court, New York County.

Nov. 15, 1995.

Legal Aid Society, New York City (Julia Kuan, of counsel), for defendant.

Robert M. Morgenthau, District Attorney of New York County, New York City (Caramia Hart, of counsel), for plaintiff.

HAROLD J. ROTHWAX, Justice.

Relying solely on the information contained in the notice portions of the Voluntary Disclosure Form (hereinafter VDF) served at the defendant's arraignment on the indictment, the defendant moved to preclude, for lack of adequately specific C.P.L. § 710.30 notice, the two statements made by the defendant and the identifications made by the complaining witness and by several police officers who witnessed the assault and attempted robbery. If preclusion was not granted, the defendant requested Wade and Huntley hearings regarding every statement and identification. Following the People's written response and oral argument, the motion for preclusion was denied in its entirety and hearings were granted as to the statements and the showup identification by the complainant. The hearing was denied as to the confirmatory identifications by the police officer witnesses. ¹ This opinion explains the ruling of the court.

On January 4, 1995, at the defendant's arraignment on the felony complaint, the prosecution gave oral notice of its intent to use two statements that the defendant had made: one at 10:40 p.m. on January 3, 1995, in which the defendant stated that he "was coming from Church" and that the police "were always stopping him for this kind of stuff;" and an audiotaped statement in which the defendant denied the crime. The prosecution also gave oral notice that the complainant had observed the defendant in a showup at Beth Israel Hospital at 11:20 p.m. and had stated that the defendant "looks like the guy." The prosecution further stated that three police officers, who were together in a car, had observed the defendant slashing at the complainant and then grabbing the complainant's bag.

At his June 15, 1995 arraignment on the indictment, the defendant was served with the VDF. The first page of the VDF, just above the statement and identification notice portions, stated that the crime was committed on January 3, 1995 at 10:30 p.m. in front of 231 East 14th Street and that the arrest occurred at 10:45 p.m. on January 3, 1995, in front of 309 East 10th Street. The VDF described the two statements made by the defendant: an oral statement made to Police Officer William Brady on January 3, 1995, at 10:40 p.m. and its substance; and a statement made on January 4, 1995, at the District Attorney's Office Complaint Room to a named Assistant District Attorney (ADA), and the substance of that statement. The identification notice portion of the VDF stated that on January 3, 1995 at Beth Israel Hospital, "Hospitalized complainant had opportunity to observe defendant and stated that defendant, in substance, 'looks like the guy.' In addition, several police eyewitnesses did identify defendant at hospital."

On June 28, 1995, thirteen days after the defendant's June 15, 1995 arraignment on the indictment, the case was conferenced at the bench and the prosecutor read the trial assistant's writeup on the case (hereinafter the 161 form) to the court and defense counsel. The 161 form included the information that the complainant was taken to the hospital for medical treatment and concluded: "When police bring D to hospital for show-up later that night, CW states, in substance, that D 'looks like' the man who attacked him. At least 3 different police EWs state that they are certain that D is the man they observed attack CW."

The "central purpose" of the notice provisions of C.P.L. § 710.30 is to provide a defendant with adequate notice of statements and pre-trial identifications so as to permit the defendant a meaningful opportunity to challenge the evidence at issue. (See People v. O'Doherty, 70 N.Y.2d 479, 488, 522 N.Y.S.2d 498, 517 N.E.2d 213 [1987].) The notice statute mandates that, whenever the People intend to use at trial statements a defendant has made to a public servant or identification testimony by a person who previously identified the defendant at a police-arranged identification proceeding, the People "must serve upon the defendant a notice of such intention, specifying the evidence intended to be offered." (C.P.L. § 710.30[1].)

To be timely, the statutory notice must be provided within fifteen days following the defendant's arraignment, with two very narrow exceptions, neither of which is applicable to this case. (C.P.L. § 710.30[2], [3].) The time limit was designed to serve "the orderly, swift and efficient determination of pretrial motions." (O'Doherty, 70 N.Y.2d at 488, 522 N.Y.S.2d 498, 517 N.E.2d 213.) The requirement of timely notice is strictly enforced. The "good cause" required for late service of notice cannot be established by " 'lack of continuity' or other office failure" (People v. Briggs, 38 N.Y.2d 319, 321, 379 N.Y.S.2d 779, 342 N.E.2d 557 [1975], "mere neglect" (People v. Boughton, 70 N.Y.2d 854, 855, 523 N.Y.S.2d 454, 517 N.E.2d 1340 [1987], failure by the police to report the statement or identification to the prosecution (O'Doherty, 70 N.Y.2d at 485-86, 522 N.Y.S.2d 498, 517 N.E.2d 213; People v. Spruill, 47 N.Y.2d 869, 419 N.Y.S.2d 69, 392 N.E.2d 1252 [1979], or lack of prejudice to the defendant. (People v. McMullin, 70 N.Y.2d 855, 856-57, 523 N.Y.S.2d 455, 517 N.E.2d 1341 [1987]; O'Doherty, 70 N.Y.2d at 481, 486-87, 522 N.Y.S.2d 498, 517 N.E.2d 213.) The penalty for failing to give adequate notice within the fifteen day period is preclusion of the evidence which should have been noticed. (C.P.L. § 710.30[3].) Due to the time limits in the notice statute, deficiencies in the notice given by the prosecution cannot be remedied by discovery practice taking place outside of the fifteen day period following arraignment. (People v. Lopez, 84 N.Y.2d 425, 428-29, 618 N.Y.S.2d 879, 643 N.E.2d 501 [1994]; People v. Kahley, 214 A.D.2d 960, 627 N.Y.S.2d 189 [4th Dep't 1995].)

Although the degree of specificity required is not defined by the statute, a "blank notice," which tracks the language of the statute and states only that a statement or an identification will be introduced at trial, is insufficient to meet the statute's "specificity" requirement. (Lopez, 84 N.Y.2d at 425, 618 N.Y.S.2d 879, 643 N.E.2d 501.) In Lopez, the Court of Appeals ruled that, for the notice to be sufficiently specific,

[t]he People were required to inform defendant of the time and place the oral or written statements were made and of the sum and substance of those statements * * * Full copies of the statements need not be supplied but they must be described sufficiently so that defendant can intelligently identify them. Similarly, the People were also required to inform defendant of the time, place and manner in which the identification was made.

(84 N.Y.2d at 428, 618 N.Y.S.2d 879, 643 N.E.2d 501 [citations omitted].) Lopez cannot be read, however, to require the reviewing court to ignore the written information provided to the defendant in the same document which contains the formal "notice" statements or to ignore notice given either before the arraignment on the indictment or within the fifteen day window following the arraignment. A contrary interpretation would cause the ridiculous consequence of preclusion of an identification or statement even though the defendant actually received the specific notice to which he was entitled, merely because the details were not provided in a particular format labeled "statement notice" or "identification notice."

Neither the notice statute nor any court has mandated a precise format in which the notice must be written in order to be valid. To the contrary, courts have ruled that the notice may be oral (People v. Santana, 191 A.D.2d 174, 174-75, 594 N.Y.S.2d 189 [1st Dep't 1993]; People v. Slater, 166 A.D.2d 828, 829, 562 N.Y.S.2d 985 [3d Dep't 1990], and may be given before the arraignment on the indictment. (Santana, 191 A.D.2d at 174-75, 594 N.Y.S.2d 189; People v. Penasso, 142 A.D.2d 691, 531 N.Y.S.2d 291 [2d Dep't 1988].) Nor is there a requirement that the notice form be complete in itself. Notices have been found sufficient where the specifying details are provided by written material attached to the notice form, rather than in the notice itself (People v. Reed, 84 N.Y.2d 945, 620 N.Y.S.2d 816, 644 N.E.2d 1372 [1994]; People v. Lucas, 161 Misc.2d 954, 615 N.Y.S.2d 838 [Crim.Ct.Suffolk Co.1994], or by information provided orally. (Slater, 166 A.D.2d at 829, 562 N.Y.S.2d 985.)

So long as the intent to utilize the statement or identification at trial is clearly stated and the notice given is not misleading as to the number or specification of the statements or identification procedures to which it refers, the notice is generally sufficient, even if not complete in every detail. For example, identification notice was sufficient where it stated the type of procedure and the fact that multiple persons made an identification but did not name the identifying witnesses. (People v. Sang Bae, 164 Misc.2d 669, 671, 625 N.Y.S.2d 883 [Sup.Ct.Queens Co.1995]; People v. Mena, 155 Misc.2d 463, 589 N.Y.S.2d 727 [Sup.Ct.Bronx Co.1992].) These notices were held not to be misleading because, by informing the defendant of the type and location of the identification and the fact that it involved multiple witnesses, the notices had provided each defendant with adequate information to enable him to intelligently request a hearing on the admissibility of the identification proceedings.

By contrast, where the notice stated only that a single witness had identified the defendant, the notice was found insufficient to inform the defendant that the prosecution intended to introduce the prior identifications...