People v. Holley

• Court: New York City Court
• Writing for the Court: ROSALYN H. RICHTER
• Citation: People v. Holley, 596 N.Y.S.2d 1016, 157 Misc.2d 402 (N.Y. City Ct. 1993)
• Decision Date: 23 March 1993
• Docket Number: AP-8
• Parties: The PEOPLE of the State of New York, v. Clifton HOLLEY, Defendant

Page 1016

596 N.Y.S.2d 1016

157 Misc.2d 402

The PEOPLE of the State of New York, v. Clifton HOLLEY, Defendant.

Criminal Court of the City of New York New York County, Part AP-8.

March 23, 1993.

Robert M. Morgenthau, Dist. Atty., New York County (Robert Fraser, of counsel), for plaintiff.

Robert M. Baum, Legal Aid Soc. (Michelle Benoit, of counsel), for defendant.

ROSALYN H. RICHTER, Judge.

The defendant has moved to preclude the introduction of his statements in the Intoxicated Drivers Examination (IDE) because the prosecution did not serve timely notice pursuant to CPL § 710.30.

At the arraignment, the prosecutor served notice pursuant to CPL § 710.30(1)(a) that defendant had stated in substance, "I had a couple of beers and a couple of shots." The prosecutor also provided defense counsel with a copy of the IDE, which was prepared by the police after the defendant's arrest. This form contains the defendant's answers to a series of questions about his activities on the night of the charged incident and includes an admission that he had consumed two beers and two shots of vodka shortly before his arrest. However as often occurs at criminal court arraignments, the prosecutor did not serve notice pursuant to CPL § 710.30 that he intended to introduce the IDE statements at trial.

The service of the IDE on defense counsel at the arraignment was not sufficient to comply with the notice requirements of CPL § 710.30. See People v. Phillips, 183 A.D.2d 856, 584 N.Y.S.2d 83 (2d Dept.1992); People v. Daniel Welgoss, N.Y.L.J., Feb. 7, 1992, p. 27, col. 2 (Crim.Ct. Kings County); People v. Pennino 152 Misc.2d 230, 575 N.Y.S.2d 773 (Crim.Ct. Kings County 1991). The People are not excused from their obligation to serve notice of the statements in the IDE merely because they served notice of another statement allegedly made by the defendant. See People v. Olds, 140 Misc.2d 458, 531 N.Y.S.2d 479 (Sup.Ct. Bronx County 1988). ¹

Moreover, the defendant had every right to assume from the manner in which statement notice was given at the arraignment that the IDE statements were not included in that notice. The People made no reference to the IDE when they were asked at the arraignment to serve any notices. Cf. People v. Black, 177 A.D.2d 1040, 578 N.Y.S.2d 53 (4th Dept.1991). Rather, the IDE, which was included in a packet of police forms, was not served on defense counsel until after the People had finished giving statement notice.

The People now contend that preclusion is not required because the defendant waived this request by moving in his omnibus motion to suppress "any and all statements." However, in People v. St. Martine, 160 A.D.2d 35, 40, 559 N.Y.S.2d 697 (1st Dept.1990), the court rejected a similar argument holding that the defendant did not "by seeking to suppress any and all statements, in effect waive his right to object to the admission of statements of which he was at the time of the motion still unacquainted." To the extent that the decision in People v. John Kennedy Jr., Docket No. 92N036562, Oct. 19, 1992 (Crim.Ct.N.Y.County), which is relied on by the People here, reaches a different conclusion, this court is bound by rules of precedent to follow the Appellate Division ruling in St. Martine.

In St. Martine, unlike the instant case, the defendant did not become aware of the statement that was not included in the original notice until after he had filed his omnibus motion. However, this fact is insufficient to distinguish the St. Martine case. The crucial question is not whether defendant knew about the existence of the statement, but rather whether he knew that the People intended to introduce the statement on their direct case at trial. Since the People had not included the IDE statements in their 710.30 notice, defense counsel in the instant case had every right to assume that the People did not plan to use these statements on their direct case. Counsel therefore had no reason to include these statements in his pretrial motion to suppress. Accordingly, this court finds that the request to suppress "any and all statements" covered only those statements for which notice had been given and not every statement contained in the police paperwork served at the arraignment.

To reach a different conclusion would undermine the legislative purpose of § 710.30. As the court noted in People v. O'Doherty, 70 N.Y.2d 479, 487-88, 522 N.Y.S.2d 498, 517 N.E.2d 213 (1987), the section serves the purpose of fostering the "efficient conduct of criminal prosecutions." Thus, all notices should be served within the same fifteen day period and not in a piecemeal fashion. If the People's argument in the instant case were adopted, they would have little incentive to see that their statement notice was complete. Rather, the People could simply provide defense counsel with copies of the police reports and memo books and then determine at a later date whether there were any statements in those documents that had not been included in the original notice.

The statement for which timely notice was given ("I had a couple of beers and a couple of shots") is similar to one of the statements contained in the IDE (defendant admits drinking two beers and two shots of vodka). However, the similarity of the two statements is insufficient by itself to defeat the defendant's motion for preclusion. See People v. Olds, 140 Misc.2d 458, 531 N.Y.S.2d 479, supra. Rather, the courts have denied preclusion where the statement for which no notice was given was made at the same time and place as the properly noticed statement. See, e.g., People v. Cooper, 158 A.D.2d 743, 550 N.Y.S.2d 947 (3d Dept.1990), rev'd on other grounds, 78 N.Y.2d 476, 577 N.Y.S.2d 202, 583 N.E.2d 915 (1991); People v. Wilson, 144 A.D.2d 980, 534 N.Y.S.2d 617 (4th Dept.1988); People v. Pennino, 152 Misc.2d at 235, 575 N.Y.S.2d 773. Neither the original statement notice nor the IDE indicated when or where the first statement was made. The People's motion papers also did not establish when the defendant allegedly made the statement contained in the 710.30 notice. Thus, the record provides no basis to find that the two statements were made under the same circumstances and the motion to preclude is granted.

The defendant also contends that his statements and the liquor bottle that was found in his car should be suppressed as the fruit of an unlawful arrest. At the hearing held before me, Police Officer Andre Fleury testified that at about midnight on April 15, 1992, he was working at a DWI checkpoint at Clinton and Stanton Streets in Manhattan. The checkpoint was set up so that all traffic was funneled into one lane. When the defendant pulled up to the checkpoint, Officer Fleury was standing on the driver's side of the defendant's vehicle. Officer Fleury said something to the defendant, though he could not recall what he said. He also could not recall the defendant's reply. However, he did remember that the defendant's breath smelled of alcohol and his eyes were bloodshot and watery. Officer Fleury told the defendant to pull his car over and then told him to get out of the car. When the defendant stepped out, he was unsteady and admitted that he had been drinking. The defendant also took an alcosensor test, which showed a reading of .16. After the defendant was arrested, the police saw an empty bottle of vodka in the car.

Although this court found Officer Fleury to be a credible witness, ² his testimony was insufficient to establish that the checkpoint here complied with the standards established by the Court of Appeals in People v. Scott, 63 N.Y.2d 518, 483 N.Y.S.2d 649, 473 N.E.2d 1 (1984). In Scott, the court held that the state's interest in preventing death and injuries from drunk driving could be promoted by roadblocks provided that the roadblock was administered in a non-arbitrary manner. See also People v. Ingle, 36 N.Y.2d 413, 369 N.Y.S.2d 67, 330 N.E.2d 39 (1975). In evaluating the validity of a checkpoint, the court must consider "the degree of the intrusion of the procedure on the individual subjected to it, measured in terms of both its subjective effect and the degree of discretion vested in the officials charged with carrying it out." Scott, 63 N.Y.2d at 525, 483 N.Y.S.2d 649, 473 N.E.2d 1. The reviewing court must ensure that the roadblock was "being maintained in accordance with a uniform procedure which afforded little discretion to operating personnel, and that adequate precautions as to safety, lighting and fair warning of the existence of the checkpoint were in operation." Id. at 526, 483 N.Y.S.2d 649, 473 N.E.2d 1; see also People v. John BB., 56 N.Y.2d 482, 453 N.Y.S.2d 158, 438 N.E.2d 864 (1982) (upholding checkpoint in heavily burglarized area).

In this case, Officer Fleury's testimony failed to establish that there were any procedures in effect to limit the discretion of the individual officers operating the roadblock. No evidence was provided to show that the checkpoint was set up according to any written procedure or plan. The existence of such written guidelines was one of the critical factors in the Scott decision. See also Michigan State Police v. Sitz, 496 U.S. 444, 450-52, 110 S.Ct. 2481, 2485-86, 110 L.Ed.2d 412 (1990); Webb v. State of Texas, 739 S.W.2d 802 (Tex.Cr.App.1987). Officer Fleury also provided no information as to who determined the location and layout of the checkpoint. This court has no way to determine from the sparse evidence at the...