People v. Morrel
| Decision Date | 08 August 1991 |
| Docket Number | AP-5 |
| Parties | The PEOPLE of the State of New York v. Jose MORREL, Defendant |
| Court | New York City Court |
Robert M. Morgenthau, Dist. Atty., New York County (Michael Solomon, of counsel), New York City, for the People.
Robert M. Baum, The Legal Aid Soc., New York County (Mary Elizabeth Anderson, of counsel), New York City, for defendant.
Defendant is charged in a superseding information with Criminal Possession of a Weapon in the Fourth Degree (PL § 265.01[1]. By notice of motion dated June 7, 1991, defendant moves for an order granting:
1. The preclusion of statement evidence pursuant to CPL § 710.30(3);
2. The dismissal of the accusatory instrument for facial insufficiency pursuant to CPL §§ 170.30(1)(a), 170.35(1)(a) and 100.40(1); and
3. The dismissal of the criminal action on the ground that defendant has been denied his right to a speedy trial pursuant to CPL §§ 30.30 and 170.30(1)(e).
After a review of the moving papers, the People's response, the court file, and the applicable law, the court finds and decides as follows.
CPL § 710.30(1)(a) provides that "[w]henever the people intend to offer at a trial ... evidence of a statement made by a defendant to a public servant, which statement if involuntarily made would render the evidence thereof suppressible ... they must serve upon the defendant a notice of such intention, specifying the evidence intended to be offered." If the People fail to give such notice within 15 days of arraignment, the evidence will be precluded unless the People can show good cause why the notice was not given in a timely fashion. CPL § 710.30(3). The absence of prejudice to a defendant does not obviate the need for the People to meet the statutory requirement of good cause before they may be permitted to serve a late notice. People v. O'Doherty, 70 N.Y.2d 479, 522 N.Y.S.2d 498, 517 N.E.2d 213 (1987).
In this case, the People served notice of intention to use a statement allegedly made by defendant to a law enforcement official. The statement was in substance: Defense counsel subsequently moved to suppress this statement in an omnibus motion filed and served on December 3, 1990.
However, on January 9, 1991, the People filed a superseding information. The factual portion of this instrument states:
Deponent observed defendant closing the rear door of a red Chevrolet license # 3RU116. Deponent states that defendant gave deponent keys to said Chevrolet automobile and stated to deponent that said Chevrolet was owned by defendant.
Deponent recovered one silver revolver from defendant's automobile, said red Chevrolet license # 3RU116.
Defendant was thus not given notice regarding his alleged statement of ownership of the car until January 9, 1991, when the superseding information was filed.
In their response to defendant's motion, the People do not offer any cause for the delay, but argue that the statement in issue did not require notice to defendant under CPL § 710.30, because defendant was not in custody at the time and was merely responding to an investigative question by the police officer. The defense specifically rebuts this assertion in its reply papers, contending that defendant did not make statements until he had been placed under arrest.
Since there is a genuine question as to the voluntariness of the statement, any evidence of this statement must be precluded. If a defendant is "even arguably ... entitled to a pretrial hearing, the statutory notice must be supplied regardless of the District Attorney's personal opinion that the defendant had not been subjected to custodial interrogation and regardless of the fact that, following a hearing, the trial court might reach the same conclusion." People v. Brown, 140 A.D.2d 266, 270, 528 N.Y.S.2d 565 (1st Dept.1988). People v. Greer, 42 N.Y.2d 170, 397 N.Y.S.2d 613, 366 N.E.2d 273 (1977); People v. Reboredo, N.Y.L.J., April 22, 1991, at 30 col. 5 (Crim.Ct.Kings Co., Cross, J.). Cf. People v. Naranjo, 140 Misc.2d 43, 529 N.Y.S.2d 953 (Sup.Ct.N.Y.Co.1988). It is for the court, and not the People, to determine whether evidence has been constitutionally obtained. Accordingly, defendant's motion to preclude the statement evidence pursuant to CPL § 710.30(3) is granted.
Defendant next argues that the superseding information is facially insufficient without the alleged assertions of ownership, because there are no facts to show that defendant actually possessed the gun allegedly recovered from the car. An information must state evidentiary facts which provide reasonable cause to believe that the defendant committed the offenses charged and must contain non-hearsay allegations which establish, if true, every element of the offense charged and the defendant's commission thereof. CPL §§ 100.15 and 100.40.
The unusual issue presented here is whether a statement which must be precluded because of lack of notice can be used to support an information, where without the statement the information would be insufficient. The parties have not cited, and the court has not found, any authority instructive on this question.
This court holds that an inadmissible statement may not support an otherwise insufficient information. Inadmissible statements clearly do not constitute the "facts of an evidentiary character" which can alone provide "reasonable cause to believe that the defendant committed the offense charged...." CPL §§ 100.15(3), 100.40(4)(b). Any other rule would have the illogical result of allowing the People to proceed to trial upon an information that they plainly could not prove.
Since defendant's alleged claim of ownership cannot be considered in determining whether the superseding information contains facts to support...
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