People v. Mathurine
| Decision Date | 31 July 2013 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Jason MATHURINE, Defendant. |
| Court | New York Criminal Court |
OPINION TEXT STARTS HERE
Daniel M. Donovan Jr., District Attorney, Patrick Nelligan, Assistant District Attorney, Staten Island, for the People.
Duane C. Felton, Esq., Staten Island, for the Defendant, Jason Mathurine.
The issue before the Court is whether the People may use the defendant's allocution from a guilty plea in a previous case to show the defendant's knowledge of an element of a charge at trial in the instant case without first providing the defendant with a notice pursuant to CPL § 710. 30(1)(a).
On March 8, 2011, the defendant was arrested and charged with Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree [VTL § 511(2) ] under docket 2011RI002208.
On March 9, 2011, the defendant pled guilty to VTL § 511(2)(a)(4) and received a sentence that included 7 days jail and a $500 fine.
At the time of his plea the defendant was represented by counsel. During his allocution the defendant admitted that on March 8, 2011, he was operating a motor vehicle while he knew that his privilege to operate a motor vehicle was suspended for having at least three suspensions on three or more dates. The defendant indicated that he understood that he was giving up his right to a trial and to any and all possible defenses he may have had. The defendant said he was not under the influence of any drugs or alcohol and that he was physically and mentally able to proceed at the time. He indicated that he had had enough time to speak to his attorney and that he was satisfied with his representation. Significantly, the defendant indicated that he was pleading guilty of his own free will and that he was giving up his right to remain silent under the Fifth Amendment.
On December 9, 2011 and February 18, 2012, the defendant was again arrested and charged with VTL § 511(2) under dockets 2011RI011027 and 2012RI001658. These cases were consolidated to be tried jointly.
Prior to trial the People indicated that they intended to introduce, as evidence in chief, the allocution from the guilty plea on docket 2011RI002208 to show the defendant's knowledge that his license was suspended at the times of the new arrests. Defense counsel did not consent to the introduction of the allocution but allowed that a certified copy of the minutes would suffice if the allocution was admitted.
During trial, the People moved to put the allocution from docket 2011RI002208 into evidence to show the defendant's knowledge that his license was suspended.
Defendant's counsel objected. Among the reasons cited for his objection, counsel indicated that there was no notice pursuant to CPL § 710.30(1)(a) for these statements. He also conjectured that without a Huntley hearing there was no way of knowing if the statement, that is the plea of guilt, was voluntarily made. Defendant's counsel did concede however that the defendant had not appealed the previous plea and sentence and had not sought any other post sentence relief by way of a CPL § 440 motion or other litigation.
CPL § 710.30(1) states that:
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 three of section 710.20, or (b) testimony regarding an observation of the defendant either at the time or place of the commission of the offense or upon some other occasion relevant to the case, to be given by a witness who has previously identified him as such, they must serve upon the defendant a notice of such intention, specifying the evidence intended to be offered.
CPL § 710.20(3) states (in pertinent part):
Upon motion of a defendant who (a) is aggrieved by unlawful or improper acquisition of evidence and has reasonable cause to believe that such may be offered against him in a criminal action, a court may, under circumstances prescribed in this article, order that such evidence be suppressed or excluded upon the ground that it: (3) Consists of a record or potential testimony reciting or describing a statement of such defendant involuntarily made, within the meaning of section 60.45.
CPL § 60.45(2) states:
A confession, admission or other statement is “involuntarily made” by a defendant when it is obtained from him:
(a) By any person by the use of threatened use of physical force upon the defendant or another person, or by means of any other improper conduct or undue pressure which impaired the defendant's physical or mental condition to the extent of undermining his ability to make a choice or not to make a statement; or
(b) By a public servant engaged in law enforcement activity or by a person then acting under his direction or in cooperation with him:
(I) by means of any promise or statement of fact, which promise or statement creates a substantial risk that the defendant might falsely incriminate himself; or
(ii) in violation of such rights as the defendant may derive from the constitution of this state of the United States.
After considering the relevant law and the arguments of counsel was not persuaded by the defendant's objections. Accordingly, the court allowed the allocution to be introduced into evidence and indicated it would issue a written decision for the benefit of parties.
A lack of notice pursuant to CPL § 710.30(1)(a) does not foreclose the use of all statements by the prosecution. It is clear that only involuntary statements, as defined by CPL § 60.45, are subject to the notice requirement. Thus, statements constituting res gestae (People v. Wells, 133 A.D.2d 385, 519 N.Y.S.2d 553 [2d Dept. 1987]lv. denied70 N.Y.2d 939, 524 N.Y.S.2d 690, 519 N.E.2d 636 [1987] ), spontaneous statements (People v. Pulido, 138 A.D.2d 641, 526 N.Y.S.2d 224 [2d Dept. 1988]lv. denied72 N.Y.2d 960, 534 N.Y.S.2d 674, 531 N.E.2d 306 [1988] ), statements made to a co-defendant which are overheard by law enforcement (People v. Stewart, 160 A.D.2d 966, 554 N.Y.S.2d 687 [2d Dept. 1990]; People v. Umana, 76 A.D.3d 1111, 908 N.Y.S.2d 244 [2d Dept. 2010]lv. denied15 N.Y.3d 924, 913 N.Y.S.2d 651, 939 N.E.2d 817 [2010] ), statements made to private individuals (People v. Batista, 277 A.D.2d 141, 717 N.Y.S.2d 113 [1st Dept. 2000]lv. denied96 N.Y.2d 825, 729 N.Y.S.2d 445, 754 N.E.2d 205 [2001]; People v. Whitmore, 12 A.D.3d 845, 785 N.Y.S.2d 140 [3d Dept. 2004]; People v. Mirenda, 23 N.Y.2d 439, 297 N.Y.S.2d 532, 245 N.E.2d 194 [1969] ), testimony before a grand jury (People v. Jones, 236 A.D.2d 217, 653 N.Y.S.2d 323 [1st Dept. 1997]appeal denied89 N.Y.2d 1036, 659 N.Y.S.2d 867, 681 N.E.2d 1314 [1997] ), statements made to EMS workers (People v. Esmail, 260 A.D.2d 396, 688 N.Y.S.2d 186 [2d Dept. 1999]appeal denied 93 N.Y.2d 970, 695 N.Y.S.2d 55, 716 N.E.2d 1100 [1999] ) and pedigree statements (People v. Keating, 70 N.Y.2d 933, 524 N.Y.S.2d 685, 519 N.E.2d 631 [1987] ) do not require that a notice pursuant to CPL § 710.30(1)(a) be served to allow the People to use such statements on their case in chief.
Although they may be subject to a hearing on “traditional voluntariness,” statements made to members of law enforcement which are unnoticed pursuant to CPL § 710.30 may still be used to cross examine a defendant if he testifies at trial (People v. Rigo, 273 A.D.2d 258, 709 N.Y.S.2d 571 [2d Dept. 2000]appeal denied95 N.Y.2d 937, 721 N.Y.S.2d 614, 744 N.E.2d 150 [2000] ) and statements for which CPL 710.30(1)(a) notice has been withdrawn may be used by the People on their rebuttal case (People v. Varela, 22 A.D.3d 264, 804 N.Y.S.2d 16 [1st Dept. 2005]appeal denied6 N.Y.3d 781, 811 N.Y.S.2d 349, 844 N.E.2d 804 [2006]writ denied Varela v. Marshall, 520 F.Supp.2d 471 [S.D.N.Y.2007] ). Statements which are clearly made voluntarily are not subject to the notice requirement (People v. Roopchand, 107 A.D.2d 35, 485 N.Y.S.2d 332 [2d Dept. 1985]appeal granted64 N.Y.2d 1025, 489 N.Y.S.2d 1040, 478 N.E.2d 223 [1985]affd.65 N.Y.2d 837, 493 N.Y.S.2d 129, 482 N.E.2d 924 [1985]; People v. Smith, 151 A.D.2d 792, 543 N.Y.S.2d 121 [2d Dept. 1989]appeal denied74 N.Y.2d 900, 548 N.Y.S.2d 432, 547 N.E.2d 959 [1989] ).
Since “CPL § 710.30(1)(a) is a notice statute intended to facilitate a defendant's opportunity to challenge before trial the voluntariness of statements made by him” (People v. Lopez, 84 N.Y.2d 425, 618 N.Y.S.2d 879, 643 N.E.2d 501 [1994] ) it does not include pleas of guilty which are presumptively voluntary when made. “The voluntariness of a plea is challenged prior to sentencing by a motion to withdraw the plea under CPL § 220.60, or after sentencing by a motion to set aside the plea under CPL § 440.10 In the absence of such a motion, however, the plea and resulting conviction are presumptively voluntary, valid and not otherwise subject to collateral attack” (People v. Latham, 90 N.Y.2d 795, 666 N.Y.S.2d 557, 689 N.E.2d 527 [1997]; see also, United States v. Broce, 488 U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927 [1989] “it is well settled that a voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked”). Thus, it is clear that the preclusion of the guilty plea at a subsequent proceeding, on grounds that the plea was involuntarily made, is not an appropriate remedy.
Analogous situations, dealing with the lack of notice pursuant to CPL § 710.30(1)(b) with regard to in court identifications, provides guidance.
In People v. White, 73 N.Y.2d 468, 541 N.Y.S.2d 749, 539 N.E.2d 577 [1989], certiorari denied493 U.S. 859, 110 S.Ct. 170, 107 L.Ed.2d 127 [1989], “the issue presented is whether the requirements of CPL 710.30 apply to judicially supervised identifications which occur when defendant is represented by counsel.” In ruling that a failure to...
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