People v. Ocasio

• Court: New York Supreme Court
• Writing for the Court: HERBERT J. LIPP
• Citation: People v. Ocasio, 552 N.Y.S.2d 514, 146 Misc.2d 688 (N.Y. Sup. Ct. 1990)
• Decision Date: 20 February 1990
• Parties: PEOPLE of the State of New York v. Ruben OCASIO, Defendant.

Page 514

552 N.Y.S.2d 514

146 Misc.2d 688

PEOPLE of the State of New York v. Ruben OCASIO, Defendant.

Supreme Court, Kings County Criminal Term, Part 11.

Feb. 20, 1990.

Charles Hynes, Dist. Atty., Kings County, Brooklyn by Jeffrey Pittell, Asst. Dist. Atty., for the People.

The Legal Aid Soc., Kings County, Brooklyn by Thomas McGivney, for defendant.

HERBERT J. LIPP, Justice.

At a suppression hearing conducted in this case, the arrest was determined to be legal and the lineup fairly conducted. The sole outstanding pre-trial issue is whether the People may amend their previously served CPL 710.30(1)(b) notice by changing the name of the individual set forth in said notice. For the reasons stated herein, the People's motion to amend the statutory notice is granted.

The defendant was arraigned on May 16, 1989 and charged with Robbery in the First Degree, et al. On that date, the People served notice pursuant to CPL 710.30(1)(b) indicating that they intended to introduce into evidence testimony that defendant was identified on January 3, 1989, in a lineup conducted at the 90th Precinct by a witness named Erika Schesinger. On June 26, 1989, defendant moved to suppress the identification procedure for which he was given notice, and the Court ordered a Wade hearing (United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149). On the scheduled date of the Wade hearing, December 20, 1989, the People moved orally to amend the CPL 710.30(1)(b) notice by substituting the name of "Sonia Morales" for that of "Erika Schesinger." Defendant's objection to such amendment was noted for the record, the Court reserved decision on this matter, and the Wade hearing was conducted.

The identification of Sonia Morales was not suppressed, thereby requiring the Court to determine the legality of the People's motion. After a comprehensive review of the existing case law, it appears that this issue is one of first impression.

CPL 710.30(1)(b) provides:

Whenever the people intend to offer at a trial ... 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 710.30(2) provides that "such notice must be served within fifteen days after arraignment and before trial" in order to accord the defendant a "reasonable opportunity to move ... to suppress" such evidence. Although subdivision 2 does provide that for "good cause shown" the People may serve such notice after the fifteen day period, no statutory clause pertains to the amendment of a notice filed in a timely manner but which is inaccurate.

In his Memorandum of Law in opposition to the People's motion, defendant cites only case law discussing sanctions imposed for the failure to provide timely notice. (See, People v. O'Doherty, 70 N.Y.2d 479, 522 N.Y.S.2d 498, 517 N.E.2d 213 [failure to provide notice of defendant's statement to police]; People v. McMullin, 70 N.Y.2d 855, 523 N.Y.S.2d 455, 517 N.E.2d 1341 [failure to provide notice of two witnesses' out of court identification of the defendant]; People v. Boughton, 70 N.Y.2d 854, 523 N.Y.S.2d 454, 517 N.E.2d 1340 [timely notice of defendant's statement withdrawn after the statutory period. Subsequent attempt by People to introduce statement is prohibited for violation of notice requirements]. See also, People v. Bernier, 73 N.Y.2d 1006, 541 N.Y.S.2d 760, 539 N.E.2d 588 [failure to provide notice of main identifying witness].

This Court has previously held that it would "strictly adhere to the principles promulgated in People v. O'Doherty, 70 NY2d 479 [522 N.Y.S.2d 498, 517 N.E.2d 213]" (People v. Pamias, 139 Misc.2d 262, 263, 528 N.Y.S.2d 319; People v. Villodas, N.Y.L.J., Sept. 22, 1989, at 25, col. 6). The Court, however, should not elevate form over substance and will "[avoid] an interpretation of CPL 710.30 that places too much emphasis on the statute's literal language when doing so would produce results plainly at odds with the policy of the legislation as a whole" (People v. White, 73 N.Y.2d 468, 474, n. 1, 541 N.Y.S.2d 749, 539 N.E.2d 577; citing People v. Tas, 51 N.Y.2d 915, 916, 434 N.Y.S.2d 978, 415 N.E.2d 967; People v. Collins, 60 N.Y.2d 214, 218-219, 469 N.Y.S.2d 65, 456 N.E.2d 1188; People v. Berkowitz, 50 N.Y.2d 333, 338, n. 1, 428 N.Y.S.2d 927, 406 N.E.2d 783; People v. Gissendanner, 48 N.Y.2d 543, 552, 423 N.Y.S.2d 893, 399 N.E.2d 924).

To understand the legislative intent of CPL 710.30, one must reflect on the history of New York criminal practice. In 1974, the legislature passed the Omnibus Pretrial Motion Bill of 1974 (L.1974, ch. 763, § 1). Its purpose was to "present the vast bulk of the pre-trial litigation of criminal cases before one judge, on one set of papers and at one time" (Bellacosa, Practice Commentary, McKinney's Cons.Laws of N.Y., Book 11A, CPL 255.10, at 437). The legislature mandated that criminal defendant's file their omnibus motions within forty-five days after arraignment (CPL 255.20). Pursuant to Laws of 1976 (ch. 194, § 3), the People were required to give formal notification, within fifteen days of arraignment, of any out of court identification made of a defendant and any statement made by a defendant to law enforcement personnel.

These statutory provisions "sought to impose order and speed on pre-trial motion practice by requiring the defendant to make substantially all pre-trial motions at one time" (People v. O'Doherty, supra, 70 N.Y.2d at 488, 522 N.Y.S.2d 498, 517 N.E.2d 213), and to alleviate the previously encountered problem of having notice served at any time prior to trial (see, People v. Briggs, 38 N.Y.2d 319, 379 N.Y.S.2d 779, 342 N.E.2d 557; People v. Spruill, 47 N.Y.2d 869, 419 N.Y.S.2d 69, 392 N.E.2d 1252).

In the case at bar, it is uncontested that the People filed a timely notice under CPL 710.30(1)(b), and as a result of receiving such notice defendant filed an omnibus motion in which he sought suppression of the identification testimony. Defendant maintains, however, that since an amendment of the statutory notice is not explicitly provided for in the statute, it must therefore be prohibited.

The People do not claim the defendant had actual notice of the identification proceeding, thereby nullifying the need for formal notice ¹ (compare, People v. White, 73 N.Y.2d 468, 541 N.Y.S.2d 749, 539 N.E.2d 577 [defendant identified at a previous trial]; People v. Maldonado, 144 Misc.2d 338, 544 N.Y.S.2d 934 and People v. Allen, N.Y.Sup., 550 N.Y.S.2d 561 [defendant represented by counsel at court ordered lineup]; People v. Michel, 56 N.Y.2d 1014, 453 N.Y.S.2d 639, 439 N.E.2d 355 [defendant's confession signed by counsel].

Nor is the pending matter analogous to those cases whereby the People introduced evidence of a statement other than one for which notice was previously served (People v. Bennett, 80 A.D.2d 68, 438 N.Y.S.2d 389, aff'd on limited grounds, 56 N.Y.2d 837, 453 N.Y.S.2d 164, 438 N.E.2d 870; People v. Sullivan, 117 A.D.2d 476, 504 N.Y.S.2d 788, lv. to appeal denied, 68 N.Y.2d 918, 508 N.Y.S.2d 1039, 501 N.E.2d 612). In People v. Grandenetti, 139 Misc.2d 614, 528 N.Y.S.2d 303, the prosecution provided 710.30(1)(a) notice of defendant's statement. Such notice purported to set forth the sum and substance of defendant's statement. At the Huntley hearing, held to determine the admissibility of such statement, the police officer testified to a statement which, although similar, was much more inculpatory than the statement for which notice was given. In precluding that portion of the statement for which notice was not served, the Court held:

[W]here the difference between the notice served and the statement to be offered at trial serves to frustrate the defendant's opportunity to fashion an appropriate defense, then the notice does not meet the requirements and serves to defeat the intent of § 710.30(1)(a) of the Criminal Procedure Law.

People v. Grandenetti, supra, 139 Misc.2d at 615, 528 N.Y.S.2d 303.

The Grandenetti court also determined that the People lacked good cause for the delay in the notice and further held that the defendant showed actual prejudice in the defense of his case in lieu of the admission of the additional statement.

A fair reading of Grandenetti leads this Court to conclude that a defendant's statement for which timely, although inspecific or conclusory, notice had been served will not be precluded under People v. O'Doherty, 70 N.Y.2d 479, 522 N.Y.S.2d 498, 517 N.E.2d 213, unless the admission of the subsequent statement prejudices the defendant.

Another nisi prius court has held that People v. O'Doherty, 70 N.Y.2d 479, 522 N.Y.S.2d 498, 517 N.E.2d 213, supra, requires the preclusion of any and all statements for which 710.30(1)(a) notice has not been provided, even if the statements are substantially similar and no prejudice to the defendant is shown (People v. Olds, 140 Misc.2d 458, 531 N.Y.S.2d 479).

Unlike the Court in Olds, this Court finds nothing in People v. O'Doherty, supra, or in...