People v. Lopez

• Decision Date: 16 September 1993
• Citation: 603 N.Y.S.2d 948,159 Misc.2d 264
• Parties: The PEOPLE of the State of New York, v. Humberto LOPEZ, Defendant.
• Court: New York City Court

Page 948

603 N.Y.S.2d 948

159 Misc.2d 264

The PEOPLE of the State of New York, v. Humberto LOPEZ, Defendant.

Criminal Court of the City of New York,

New York County,

SAP II.

Sept. 16, 1993.

O. Peter Sherwood, Corp. Counsel of the City of New York, Marilyne Mason, Deborah Rand, New York City, for the People.

Noel Ziegler, Woodbury, NY, for defendant.

JOAN A. MADDEN, Judge.

The defendant was initially charged and arraigned on April 21, 1993 on a violation of the Administrative Code alleging that defendant failed to provide a secondary means of egress. (Administrative Code of City of NY Sections 27-365 and 15-216(a) and (b)). Subsequently, on June 30, 1993, the People filed a superseding information replacing the original charges with A.C. Sections 27-366 and 26-248(a), and simultaneously served the defendant for the first time with statement notice pursuant to CPL Sec. 710.30.

Statement of Notice

The defendant moves this Court to preclude the People from introducing at trial any statements allegedly made by the defendant to a public servant based upon the People's failure to comply with the 15 day period prescribed by CPL Sec. 710.30. The issue presented to this Court is whether the People may serve statement notice upon the defendant following the arraignment on a superseding information where no such notice was served at the defendant's arraignment on the original accusatory instrument.

CPL Sec. 710.30(2) provides that the People must serve notice of their intention to offer at trial evidence of a statement by defendant to a public servant "within fifteen days after arraignment and before trial." (Emphasis added). In criminal court, a defendant must be arraigned at various stages of the proceedings--upon the filing of an information, a simplified information, a prosecutor's information or a misdemeanor or felony complaint. CPL Sections 170.10, 180.10. In the case at bar, the People filed an information which was subsequently replaced by a superseding information. CPL Sec. 170.30 does not specify at which arraignment the 15 day period is triggered, nor is there any provision prohibiting the 710.30(1) notice at an arraignment on a superseding information.

In People v. O'Doherty, the Court of Appeals stated that although the central purpose behind the 15 day requirement of CPL Sec. 710.30 is to provide the defendant with the opportunity to obtain a pretrial ruling on the admissibility of statements to be used against him, the statute serves an ancillary goal, "the orderly, swift and efficient determination of pretrial motions." 70 N.Y.2d 479, 488, 522 N.Y.S.2d 498, 517 N.E.2d 213 (1987). The Court reasoned that the pretrial motion provision of CPL Sec. 255.20 which requires the defendant to make substantially all pretrial motions at one time, on one set of omnibus papers, before one judge, within 45 days after arraignment, is compromised, if the People are permitted under CPL Sec. 710.30 to serve upon the defendant statement notice at any time prior to trial. Id.

In felony cases, where the defendant is generally arraigned initially on a felony complaint and subsequent to the grand jury presentations on an indictment, courts have uniformly held that the 15 day period for filing 710.30 statement notice is triggered by the defendant's arraignment on the indictment, not from arraignment on the felony complaint. See People v. Penasso, 142 A.D.2d 691, 531 N.Y.S.2d 291 (2d Dept.1988); People v. Baris, 116 A.D.2d 174, 500 N.Y.S.2d 572 (4th Dept.1986); People v. Pamias, 139 Misc.2d 262, 528 N.Y.S.2d 319 (Sup.Ct.Kings Co.1988); People v. Hylton, 139 Misc.2d 645, 529 N.Y.S.2d 412 (Sup.Ct.Nassau Co.1988). The courts used CPL Article 255 as the benchmark in determining when the time period is triggered, reasoning that since the single omnibus motion contemplated by Article 255 includes motions to dismiss an indictment (CPL Sec. 255.10(1)(a)), the defendant's time to move does not begin to run until arraignment on the indictment, which date also then controls for purposes of defining arraignment under CPL Sec. 710.30. People v. Pamias, supra, 139 Misc.2d at 264, 528 N.Y.S.2d 319; see People v. Baris, supra; People v. Littlejohn, 184 A.D.2d 790, 585 N.Y.S.2d 495 (2d Dept.1992).

To date no Appellate authority exists on the specific question of whether the 15 day period for 710.30 statement notice is retriggered upon the filing of a superseding information. However, in an analogous situation, where the defendant was reindicted, the Second Department held that the People had 15 days from the defendant's arraignment on the second indictment within which to file 710.30 statement notice. People v. Littlejohn, supra, 184 A.D.2d at 791, 585 N.Y.S.2d 495. The court stated:

The 15 day limitation of CPL 710.30 was included in the statute for the purpose of imposing order and speed on pretrial motions (see, People v. O'Doherty, 70 NY2d 479, 488 [522 N.Y.S.2d 498, 517 N.E.2d 213], and it must be read in terms of its relationship with CPL article 255 (see generally, People v. Baris, 116 AD2d 174 ; People v. Penasso, 142 AD2d 691 . It is clear that following arraignment on the second indictment the defendant is permitted to, and in this case did, file new pretrial motions pursuant to CPL 255.20. Thus no delay in the order and speed of the pretrial motions was caused by the People's service of the CPL 710.30 notice at the time of the arraignment on the second indictment, and the requirements of the statute are satisfied.

Id.

Under the court's reasoning in People v. Littlejohn, supra, upon the filing of a superseding information, the defendant is entitled to serve and file additional pretrial omnibus motions within 45 days of arraignment upon the superseding information. See CPL Sections 255.10(1)(b), 170.30. Thus, no delay in the order and speed of the pretrial motions is caused by the People's service of the CPL Sec. 710.30 notice at the time of the arraignment upon the superseding information.

Defendant argues the People filed a pretextual superseding information in an effort to circumvent the provisions of CPL 710.30. The defendant puts forth a...