People v. O'Doherty

• Decision Date: 24 November 1987
• Citation: 522 N.Y.S.2d 498,70 N.Y.2d 479
• Parties: , 517 N.E.2d 213 The PEOPLE of the State of New York, Respondent, v. Kathleen O'DOHERTY, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 498

522 N.Y.S.2d 498

70 N.Y.2d 479, 517 N.E.2d 213

The PEOPLE of the State of New York, Respondent, v. Kathleen O'DOHERTY, Appellant.

Court of Appeals of New York.

Nov. 24, 1987.

Florence M. Kerner and Philip L. Weinstein, New York City, for appellant.

John J. Santucci, Dist. Atty. (Robert I. Caloras, of counsel), for respondent.

OPINION OF THE COURT

WACHTLER, Chief Judge.

This appeal requires us to decide whether the People may be excused from their failure to comply with the statutory requirement that they notify defendant, within 15 days of her arraignment, of their intention to offer at trial evidence of a statement made by her to a police officer (see, CPL 710.30). We hold that the People did not establish good cause for the delay and that, therefore, it was error to permit them to serve a late notice and to admit such evidence at defendant's trial. Lack of prejudice to the defendant resulting from the delay does not obviate the need for the People to meet the statutory requirement of good cause before they may be permitted to serve a late notice.

Defendant was convicted, after a jury trial, of robbery in the first degree, based on charges that, in the predawn hours of July 1, 1982, she and a male accomplice robbed at gunpoint a cab driver named Balram Jageswar. According to Jageswar, the pair hailed his cab in Manhattan and, when he stopped to let them off in Queens, the male held a gun to his head while defendant took his watch, wallet and $120 in cash, and handcuffed him. The assailants then drove off in the cab, leaving their victim behind. Jageswar found his way to a phone booth to summon the police, who came to his aid and transported him to the 105th Precinct in Queens. There, he recounted the events and gave the police a description of the robbers. The case was assigned to Detective Kelly of the Queens Robbery Squad.

On August 12, 1982, defendant and Alfredo Perez were arrested in Queens by Police Officer Nash in connection with a separate but similar crime, for which they were eventually indicted. In response to questioning by Nash at that time about other incidents in the area, defendant made several inculpatory statements, including the one at issue on this appeal: "I was with him [Perez] on the Balram Jageswar robbery. He deserved it because he took us into Nassau County." Nash made a note of the statement but he did not convey the information to those investigating the Jageswar robbery.

Detective Kelly learned, however, that a male and female had been arrested by Nash for a crime similar to the Jageswar robbery and he obtained the arrest photos of the pair for use in his investigation. On September 8, 1982, Jageswar picked defendant's photo from an array displayed to him by Kelly. Defendant was arrested on September 24, indicted for the Jageswar robbery on October 18, and arraigned on the indictment on November 3, 1982. Neither Kelly nor the Assistant District Attorney assigned to the case yet knew of defendant's statement to Nash.

It was not until April 5, 1983, five months after defendant's arraignment, that Nash notified Kelly and the ADA of defendant's statement implicating herself in the Jageswar robbery. Shortly thereafter, the People moved for permission to serve a late notice of their intention to use the statement, asserting that they had good cause for their failure to notify defendant within 15 days of arraignment (see, CPL 710.30[2] ). Defendant cross-moved for an order precluding the use of the statement (see, CPL 710.30[3] ).

Supreme Court held a hearing on the motion and at the same time, over defendant's objection, held a Huntley hearing (see, People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179) to determine if the statement was made voluntarily. The court found the facts to be essentially as stated above and ruled that the People had established good cause for their failure to notify defendant within the statutory time period. Accordingly, the court denied defendant's motion to preclude the use of the statement, granted the People's motion for permission to serve a late notice and ruled that the statement was admissible. The statement was subsequently used at defendant's trial and she was convicted of the Jageswar robbery.

The Appellate Division affirmed the conviction without addressing whether the People had established good cause, reasoning that, because defendant received notice far enough in advance of trial to prepare a defense, the purpose of the notice requirement had been satisfied (121 A.D.2d 570, 503 N.Y.S.2d 618). Defendant was granted permission to appeal by a Judge of this court.

I

CPL 710.30 requires that the People serve upon a defendant, within 15 days after arraignment, notice of their intention to offer at trial evidence of statements made by the defendant to public servants. The court may permit the People to serve a late notice, however, "[f]or good cause shown" (CPL 710.30[2] ). In the absence of a timely notice or a late notice as permitted by the court, the evidence may not be received against the defendant at trial, unless the defendant has nevertheless made an unsuccessful suppression motion directed at such evidence (CPL 710.30[3] ).

The People argue in support of an affirmance that the lack of communication between Officer Nash and the Assistant District Attorney is a sufficient excuse under the statute for their noncompliance and that, accordingly, Supreme Court properly allowed them to serve a late notice. In the alternative, they ask us to adopt the reasoning of the Appellate Division that the goal of CPL 710.30 is simply to allow a defendant adequate opportunity to prepare a challenge to the voluntariness of the statement and consequently, if the prosecution's noncompliance does not compromise that objective--that is, if the defendant is not prejudiced by the delay in receiving notice--then the People should not be precluded from using the statement, notwithstanding their lack of "good cause." Finally, the People contend that, if it was error to allow the statement to be used at trial, such error was harmless.

Defendant, on the other hand, urges that the excuse proffered by the People is indistinguishable in principle from the one advanced by the People and rejected by this court in People v. Spruill 47 N.Y.2d 869, 419 N.Y.S.2d 69, 392 N.E.2d 1252. Defendant further argues that good cause is, under the plain terms of the statute, an indispensable requirement, without which permission to file a late notice may not be granted. She asks us to reject the "no prejudice" rule applied by the Appellate Division. Accordingly, she contends that it was error to permit the People to use the statement at trial and that such error was not harmless.

For the reasons that follow, we agree with the defendant's contentions. The order of the Appellate Division should be reversed and a new trial ordered.

II

CPL 710.30, insofar as it concerns confessions or admissions by a defendant, finds its origins in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, in which the United States Supreme Court held that such statements may not be considered by the jury which is to adjudicate guilt or innocence unless there has first been a determination by a separate fact finder, following an evidentiary hearing, that such statements were made voluntarily. To effectuate that decision, this court set forth tentative procedures to govern such hearings in this State, "pending further development by the courts or by the Legislature, or both" (People v. Huntley, 15 N.Y.2d 72, 74, 255 N.Y.S.2d 838, 204 N.E.2d 179, supra ). Among other procedures, we required that "[t]he 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 by the People the defense, if it intends to attack the confession or admission as involuntary, must, in turn, notify the prosecutor of a desire of a preliminary hearing on such issue" (id., at 78, 255 N.Y.S.2d 838, 204 N.E.2d 179).

The Legislature soon codified and refined the procedures we outlined in Huntley by adding title II-C to part 6 of the Code of Criminal Procedure (L.1965, ch. 846, § 1). The notice requirement was found in section 813-f of the code, which required written notice "within a reasonable time before the commencement of the trial". The statute contained no explicit sanction for noncompliance, but it was held that failure to provide the required notice deprived the People of the evidentiary use of the defendant's statement (see, People v. Schwartz, 30 A.D.2d 385, 388, 292 N.Y.S.2d 518).

This exclusionary sanction was given the endorsement of the Legislature when the Code of Criminal Procedure was replaced by the Criminal Procedure Law in 1971 (L.1970, ch. 996, § 1). Thus, subdivision (3) of CPL 710.30 provided that evidence subject to the notice requirement could not be received against the defendant at trial if pretrial notice had not been given. Subdivision (2), however gave the People an opportunity to avert that consequence by providing that, "[f]or good cause shown * * * the court may permit the people to serve such notice during trial, and in such case it must accord the defendant reasonable opportunity to make a suppression motion during trial".

It was this version of CPL 710.30 that we addressed in People v. Briggs, 38 N.Y.2d 319, 379 N.Y.S.2d 779, 342 N.E.2d 557 and People v. Spruill, 47 N.Y.2d 869, 419 N.Y.S.2d 69, 392 N.E.2d 1252, supra, both of which involved attempts by the prosecution to serve notice during trial. In Briggs, the only excuse offered by the prosecutor for the failure to serve the notice before trial, as the statute then required, was a "lack of continuity" in the prosecutor's office; the trial prosecutor apparently did not know whether the notice had been served by his office. The trial court permitted the People to serve a late...