People v. Iavarone, 2006 NY Slip Op 50948 (N.Y. Crim. Ct. 5/22/2006)
| Decision Date | 22 May 2006 |
| Docket Number | 2005NY072430. |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK v. RALPH IAVARONE, Defendant. |
| Court | New York Criminal Court |
ROBERT M. MORGENTHAU, DISTRICT ATTORNEY, NEW YORK, NEW YORK, APPEARANCE OF COUNSEL FOR THE PEOPLE.
MICHAEL P. KUSHNER, ESQ., THE BLANCH LAW FIRM, P.C., BY: ADA JOSEPH PERRY, NEW YORK, NEW YORK, FOR THE DEFENDANT.
The defendant moves to preclude the use of statements allegedly made by him on the ground that the People have failed to serve timely notice, pursuant to CPL 710.30 (1)(a).
The People concede that, at the time of the defendant's initial arraignment, on November 1, 2005, statement notice was not given nor was it given within the following fifteen days. The complaint was signed by the complainant and, therefore, deemed an information at arraignment. A motion schedule was fixed and the case was adjourned to December 14, 2005 for the People's response to defendant's anticipated motion and for decision by the court.
On November 17, 2005, defendant served motions for discovery, preclusion of statement and identification evidence and to dismiss the complaint for facial insufficiency. On December 14, 2005, the People furnished a Voluntary Disclosure Form, dated December 12, 2005, in which the substance of a statement allegedly made by defendant to Detective Paul, by telephone, was set forth. The People also served and filed a superseding complaint signed by Detective Paul, together with a supporting deposition from the complainant who had signed the original complaint. The People also gave statement notice, pursuant to CPL 710.30(1)(a). The court gave defendant an opportunity to supplement his motions so that he might address the newly-served statement notice. The case was adjourned to February 9, 2006 for response by the People and the court's decision.
The defendant, on January 23, 2006, served a supplemental motion which, among other things, sought suppression of "written statements of the Defendant" and renewed defendant's request that evidence for which timely notice had not been given, pursuant to CPL 710.30, be precluded.
On February 9, 2006, the People served and filed their response to defendant's motions as supplemented. The court granted a Huntley hearing and set March 21, 2006 as the date for hearing and trial. Later, on February 9, 2006, the defendant served and filed a document captioned "Withdrawal of Motion to Suppress" by which defense counsel withdrew the motion to suppress defendant's statements "and associated request for a Huntley hearing, filed January 23, 2006" and asserted that the motions to preclude defendant's statements, pursuant to CPL 710.30, remained in effect.
The defendant served a "Reply Affirmation" on February 21, 2006, challenging the People's contention that statement notice had been given timely because it was furnished within fifteen days of the "arraignment" on the superseding information. The defendant, in his Reply Affirmation, argues that the superseding complaint is, in all material respects, identical to the original complaint both as to the charges made and the facts alleged, except that it is signed by the detective rather than by the complainant who, instead, furnishes a supporting deposition. It is defendant's contention that the superseding compliant is merely "pretextual" and has been filed in an effort to circumvent the provisions of CPL 710.30.
The People's response to defendant's Reply Affirmation purports to assign a legitimate reason for the filing of a superseding information — that because the complainant and the defendant were not known to one another, the complainant had to be termed "the informant" and the arresting officer became the complainant or "deponent". However, the superseding information is still based on nothing other than the information allegedly furnished by the "informant" — formerly the complainant — to the arresting officer. Thus, the factual basis for the superseding information remains unchanged from that set forth in the original complaint.
CPL 710.30 provides that the People must serve notice of their intention to offer at trial evidence of a statement by a defendant to a public servant within fifteen days after arraignment and before trial. Absent such notice, statement evidence may not be received against the defendant at trial unless the People demonstrate good cause for late notice or the defendant has moved to suppress the statement and such motion has been denied. If the facts do not satisfy either exception, the People will be precluded from introducing such evidence at trial. People v. Boyer, 6 NY3d 427 (2006).
The Court of Appeals in People v. O'Doherty, 70 NY2d 479 (1987), has made clear that the central purpose of statement notice is to provide the defendant with the opportunity to obtain a pre-trial ruling on the admissibility of a statement to be used against him. An ancillary goal of the statute is the orderly, swift and efficient determination of pre-trial motions.
The circumstances which may relieve the People of the preclusive effects of untimely notice are specified in the statute. It is not within this court's authority to create further exceptions or to excuse strict compliance with statutory requirements even though the defendant is afforded an opportunity to supplement his motions and, therefore, may not be prejudiced by the Peoples' untimely notice. See, People v. Lopez, 84 NY2d 425, 428 (1994) ( ).
The People offer no cause for late notice, let alone good cause, and that exception is, thus, unavailable. Nor has defendant waived his right to timely notice by having moved for a Huntley hearing to suppress statements. Although a hearing was granted it was never held, the defendant having withdrawn his motion. Thus, the waiver exception, which by statute is conditioned upon a denial of defendant's motion, is not here applicable. See, People v. Boyer, supra The People argue that the notice given to the defendant was not late because it was given less than fifteen days after the People served and filed a superseding information. The People ask the court to treat that event as a new arraignment from which the notice period should be measured, citing People v. Lopez, 159 Misc 2d 264 (Crim. Ct. NY Co. 1993).
It is true that the statute speaks only of "arraignment" and does not specify whether that term refers to the arraignment on the initial complaint or encompasses subsequent occasions when that complaint may be superseded by an information or replaced by an indictment.1 The court is aware of, and agrees with, the decisions that hold that an arraignment on an...
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