People v. Lewis, 2008 NY Slip Op 52171(U) (N.Y. 11/5/2008), 2007NA029590
| Decision Date | 05 November 2008 |
| Docket Number | 2007NA029590 |
| Citation | 2008 NY Slip Op 52171 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. JOHNNY LEWIS, Defendant. |
| Court | New York Court of Appeals Court of Appeals |
Hon. Kathleen Rice, Nassau County District Attorney
Lori Golombek, Esq., Attorney for Defendant.
The Defendant is charged with Criminal Possession of a Controlled Substance in the Seventh Degree, in violation of Penal Law § 220.03.
The Defendant now moves for an order precluding the People from introducing as evidence at trial any and all statements, items and/or property which was not produced by the People in response to the Defendant's Demand Notice for Discovery and Bill of Particulars, pursuant to CPL §§ 710.30 and 240.70(1), or in the alternative, directing that a Huntley hearing be held; suppressing any tangible property seized from the Defendant, pursuant to CPL § 710.20(1), or in the alternative, directing that a hearing be held pursuant to CPL § 710.60; directing the People to deliver to the Defendant all evidence favorable to him, pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963); directing the People to provide the Defendant with the names, addresses and telephone numbers of all witnesses and any statements made by such witnesses before any hearing or trial of this matter; and, directing that a hearing be held pursuant to People v. Sandoval, 34 NY2d 371, 357 NYS2d 849 (1974) and directing the People to provide the Defendant with a copy of his past criminal history and any prior bad or immoral acts which the People intend to introduce at trial in an effort to impeach the Defendant.
The People oppose the Defendant's motion, except to the extent that they consent to a hearing pursuant to People v. Huntley, 15 NY2d 22, 255 NYS2d 838 (1965), limited to the question of the voluntariness of the statements allegedly made by the Defendant, and to a Sandoval hearing to be conducted immediately before commencement of the trial herein.
MOTION TO PRECLUDE PURSUANT TO CPL §§ 710.30 and 240.70(1)
While the Defendant's Notice of Motion states that he seeks preclusion of any and all statements, items and/or property which has not been provided to the Defendant in response to his Demand Notice for Discovery and Bill of Particulars, the Defendant neither alleges that such demands were ever served upon the People nor submits copies of such demands for the court's consideration. A reading of the affirmation submitted in support of the Defendant's motion however, reveals that what the Defendant is actually seeking is preclusion based upon the People's alleged failure to comply with CPL § 710.30(1) and/or (2). Specifically, the Defendant argues that the People did not timely serve him with notice of their intention to use at trial statements he is alleged to have voluntarily made to the police, and that the notice which was ultimately served upon him failed to indicate the content of such statements.
In opposition to this branch of the Defendant's motion, the People allege that they timely filed and served an appropriate notice upon the Defendant, pursuant to CPL § 710.30.
CPL § 710.30 provides, in pertinent part:
(1) Whenever the people intend to offer at trial (a) evidence of a statement made by a defendant to a public servant, which statement if involuntarily made would render the evidence thereof suppressible upon motion pursuant to subdivision 710.20, ..., they must serve upon the defendant a notice of such intention, specifying the evidence intended to be offered.
(2) Such notice must be served within fifteen days after arraignment and before trial, and upon such service the defendant must be accorded reasonable opportunity to move before trial, pursuant to subdivision one of section 710.40, to suppress the specified evidence.
(3) In the absence of service of notice upon a defendant as prescribed in this section, no evidence of a kind specified in subdivision one may be received against him upon trial ....
The clear purpose of this statute is to "facilitate a defendant's opportunity to challenge before trial the voluntariness of statements made by him (citations omitted)." People v. Lopez, 84 NY2d 425, 618 NYS2d 879 (1994): See also: People v. Rodney, 85 NY2d 289, 624 NYS2d 95 (1995); People v. Williams, 305 AD2d 702, 759 NYS2d 883 (2nd Dept. 2003) Moreover, this statute "was designed to serve an ancillary goal-the orderly, swift and efficient determination of pretrial motions[, consistent with] the enactment of article 255 of the Criminal Procedure Law (L.1974, ch. 763, § 1), the omnibus pretrial motion provisions which sought to impose order and speed on pretrial motion practice by requiring the defendant to make substantially all pretrial motions at one time, on one set of papers before one Judge, within 45 days after arraignment (citations omitted)." People v. O'Doherty, 70 NY2d 479, 522 NYS2d 498 (1987); See also: People v. Littlejohn, 184 AD2d 790, 585 NYS2d 495 (2nd Dept. 1992); People v. Shoukron, 234 AD2d 400, 651 NYS2d 883 (2nd Dept. 1996) In the absence of the timely service of a notice of intention, whether a defendant is prejudiced or not, in the absence of good cause shown or an unsuccessful defense motion to suppress, the only remedy is preclusion. See: 710.30(3); People v. Lopez, supra.; People v. Greer, 42 NY2d 170, 397 NYS2d 613 (1977); People v. Gee, 99 NY2d 158, 753 NYS2d 19 (2002)In the matter sub judice, the Defendant was arrested on November 10, 2007 and was given a Desk Appearance Ticket which directed him to appear in the Nassau County District Court on November 29, 2007. When the Defendant failed to appear on that date a bench warrant was issue. The Defendant then appeared on December 6, 2007, at which time the bench warrant was vacated and the Defendant was arraigned. The Defendant acknowledges that "defense counsel was not assigned at arraignment[;] (Cserhalmi Affirmation 7/11/08, ¶ 18) and, the matter was adjourned to January 18, 2008 for the Defendant to appear with counsel. The People do not dispute that they did not serve the Defendant with a 710.30 notice at arraignment.
The People allege that on December 17, 2007 they served the requisite 710.30 notice upon the Defendant by mailing same to him at the same address reflected on the Desk Appearance Ticket and on the accusatory instrument upon which the Defendant was arraigned. In support thereof the People submit a copy of the notice filed with the court on that date, bearing the court's date and time stamp, along with the affidavit of service attesting to such service by first class mail. The Defendant has not submitted any papers in reply refuting this allegation; and, it is deemed admitted. See: Giliya v. Warren, 30 AD3d 420, 817 NYS2d 333 (2nd Dept. 2006); Mascoli v. Mascoli, 129 AD2d 778, 514 NYS2d 521 (2nd Dept. 1987); Siegel v. Tange, 61 AD2d 57, 401 NYS2d 269 (2nd Dept. 1978) The notice advised the Defendant that the People intended to offer the following oral statements, allegedly made on November 10, 2007 at 130 Hempstead Avenue, West Hempstead, New York, at the time of trial: (1) "I was arrested in December for CPCS for Heroin and did 4 months in jail," (2) "Go ahead, search my car, there is nothing in it," (3) Oh yeah, I forgot, my friend gave me the bag of heroin."
At the time of the Defendant's next court appearance, on January 18, 2008, the Defendant appeared, without counsel; and, the matter was adjourned to February 22, 2008, for the Defendant to retain counsel. On February 22, 2008 the Legal Aid Society was appointed to represent the Defendant; and, the matter was adjourned to March 10, 2008, and again to April 15, 2008.
On April 15, 2008 the People served defense counsel with their Voluntary Disclosure, Notices and Demands. The Defendant acknowledges receiving same on that date. Contrary to the Defendant's allegation, that this disclosure merely advised him that the People "intended to offer an oral statement at trial [but] did not include what this statement was comprised of[,]" (Cserhalmi Affirmation 7/11/08, ¶ 21) the first page of the People's disclosure clearly identified the date, time, place, and substance of the three (3) statements mentioned hereinabove. Additionally, annexed to the People's disclosure statement is a copy of the 710.30 notice mailed to the Defendant on December 17, 2007. On that same day, the People filed and annexed to the Misdemeanor Complaint1 a certified Forensic Evidence Bureau report identifying the substance seized from the Defendant at the time of his arrest as .002 ounces of heroin. The Defendant was then arraigned on this Information; and, the matter was adjourned to May 21, 2008. See: CPL § 170.65(1)
On May 21, 2008 the matter was adjourned to July 15, 2008 for motions. On July 11, 2008 the Defendant filed the instant motion.
Based upon the foregoing, the following questions are determinative of this branch of the Defendant's motion: (1) was the mailing of the People's 710.30 notice to the Defendant on December 17, 2007 and/or (2) the service of the People's Voluntary Disclosure, Notices and Demands upon counsel for the Defendant at the time of Defendant's arraignment on April 15, 2008 timely and sufficient notice pursuant to CPL § 710.30. If either question is answered in the affirmative, this branch of the Defendant's motion must be denied.
In People v. Brown, 168 Misc 2d 923, 646 NYS2d 241 (City Ct. Rochester1996), the court granted the defendant's motion to preclude, due to the fact that the People's 710.30 notice was served directly upon the defendant and not upon counsel. In reaching its decision, the court noted:
There can be no question that when a party is represented by counsel in a pending action, papers to be served on the party must be served not upon the party directly, but upon the party's attorney, in the absence of a law, court order, or agreement providing otherwise ... It is equally clear that where a...
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