People v. Olds

• Decision Date: 11 July 1988
• Citation: 140 Misc.2d 458,531 N.Y.S.2d 479
• Parties: The PEOPLE of the State of New York, v. John OLDS, Defendant.
• Court: New York Supreme Court

Page 479

531 N.Y.S.2d 479

140 Misc.2d 458

The PEOPLE of the State of New York, v. John OLDS, Defendant.

Supreme Court, Bronx County,

IAS Part 46.

July 11, 1988.

Paul Gentile, Dist. Atty., Marie Corliss, Asst. Dist. Atty., Bronx, for the People.

Carmine Annunziato, Legal Aid Society--Criminal Div., Bronx, for defendant.

PHYLLIS SKLOOT BAMBERGER, Justice:

In a pre-trial motion the defense seeks to preclude admission of one of the defendant's statements. The defendant, relying on CPL § 710.30(1)(a) and People v. O'Doherty, 70 N.Y.2d 479, 522 N.Y.S.2d 498, 517 N.E.2d 213 (1987), argues that the notice of intent to use the evidence was late and no good cause was shown by the state to excuse the out-of-time filing. The state appears to argue that the good cause requirement does not apply here because timely notice was actually given about another of the defendant's statements and, therefore, the only issue before this Court is whether the defendant was prejudiced by the late notice. This case raises questions concerning the application of O'Doherty to

cases in which the defendant has made multiple statements. It necessarily concerns the continuing validity of a series of pre-O'Doherty decisions which involve multiple statements or confessions.

FACTS

Defendant was arrested on April 18, 1987. An indictment charging burglary in the second degree, burglary in the third degree and criminal mischief in the fourth degree was filed on May 5, 1987. On May 18, 1987, defendant was arraigned on the indictment. Attached to the indictment was a voluntary disclosure form stating that the People intended to introduce at trial a statement the defendant made at the time of his arrest:

I was meeting my friend who lives in the building (apt. 4F). I was just wandering around the building. Can you give me a break and drop it down to trespass. I can't afford a felony.

On August 19, 1987, the defense filed an omnibus pre-trial motion, which included a motion to suppress the statement made by the defendant disclosed at the time of the arraignment. The People answered on September 1, 1987.

On March 31, 1988, the court in which the case was pending directed a Huntley hearing be held. On the same date, some ten and one-half months after the arraignment, the People gave notice of "further statement made by the defendant herein." The oral statement "in sum and substance" was said to be:

I ended up in the basement because I pushed the wrong button on the elevator. I don't know the name of my friend in 4F.

On April 19, 1988, the defense, citing People v. O'Doherty, supra, moved to preclude the admission of the statement of which notice was given on March 31, 1988. The People opposed the motion relying on People v. Brooks, 121 A.D.2d 392, 503 N.Y.S.2d 103 (2d Dept. 1986), and the Appellate Division decision in People v. Bennett, 80 A.D.2d 68, 438 N.Y.S.2d 389 (3d Dept. 1981), aff'd on limited grounds, 56 N.Y.2d 837, 453 N.Y.S.2d 164, 438 N.E.2d 870 (1982), two decisions which pre-dated O'Doherty. The People assert the late notice was justified because the later disclosed statement "merely elucidated the original one," that it could be presumed from the first statement that the police "delved further into defendant's claim" and that the defense was therefore on notice that information about apartment 4F was an important area of investigation, and that the Huntley hearing provides an opportunity "to investigate the precise statements of the defendant." Finally, the People claim that the defense omnibus motion included the statement which was disclosed more than seven months later. The People supplied no reason at all for the failure to give timely notice. The motion to preclude was granted after oral argument on June 16, 1988. This opinion sets forth the reasoning of the Court.

DISCUSSION

Criminal Procedure Law § 710.30 requires that the People serve upon the defendant within fifteen days of arraignment the notice of intent to offer at trial evidence of statements given by the defendant to public servants. Evidence means "any tangible property or potential testimony." CPL § 710.10(2). The notice may be made beyond the fifteen days if the People show good cause. The Court of Appeals held that courts must strictly enforce the good cause requirement: ¹

... The language which triggers the People's opportunity to serve a late notice--"[f]or good cause shown * * * the court may permit the people to serve such notice"--was unaffected by the 1976 amendment [requiring notice within 15 days of arraignment] and thus remains an "unqualifie[d] command" that the court may permit service of an untimely notice "only upon a showing of good cause" ( People v. Briggs, supra, at 323 [379 N.Y.S.2d 779, 342 N.E.2d 557] ). Such a showing is, therefore, indispensable. Only if that threshold is crossed may the court move on to considerations of prejudice to the defendant, and only then because the existence of prejudice may preclude granting the relief sought by the People, notwithstanding their showing of good cause ...

People v. O'Doherty, 70 N.Y.2d at 487, 522 N.Y.S.2d 498, 517 N.E.2d 213. Without question, the Court of Appeals established as the threshold to admit statements disclosed after the time period a showing of good cause. Id. at 487, 522 N.Y.S.2d 498, 517 N.E.2d 213. See also People v. McMullin, 70 N.Y.2d 855, 523 N.Y.S.2d 455, 517 N.E.2d 1341 (1987). In neither its written response to the defense motion to preclude nor at oral argument did the People make any effort to show good cause. The issue was never even addressed by the People although, as part of the recitation of the legal principles applicable, good cause was discussed in the defendant's motion. This failure on the part of the People results in preclusion.

However, it is necessary to discuss the People's arguments against preclusion because they present important unresolved issues under O'Doherty. The People's position is that the good cause requirement is not applicable and preclusion is not required because the late-noticed statement "merely elucidated" the first one. The state looks for support in People v. Brooks, supra, and the Appellate Division decision in People v. Bennett, supra. In Brooks the court found admissible against the defendant his statement because the notice contained the "sum and substance" of the single statement and because the defendant had a full opportunity to challenge the admissibility of the statement at a Huntley hearing. In Bennett, the notice was of both a written and an oral statement. Pursuant to a discovery request, the written statement was delivered to the defense and the defense was advised that the oral statement was in "sum and substance" like the written one. At trial, the officer testified to what the defense claimed was not contained in the statements which were the subjects of the proceedings. The Appellate Division ruled the two statements were essentially the same, and that the defendant had a full opportunity to litigate the voluntariness of the statements.

Brooks and Bennett each reflect a separate line of cases. The first line, including Brooks, deals with timely notice of a single statement under CPL 710.30 and is irrelevant to this case. The issue for resolution in those single-statement cases is the adequacy of the notice. Mere notice of the statement, without recitation of its sum and substance, is inadequate. People v. Couch, 74 A.D.2d 582, 424 N.Y.S.2d 304 (2d Dept. 1980); People v. Ludolph, 63 A.D.2d 77, 407 N.Y.S.2d 85 (4th Dept. 1978); see also People v. Rivera, 73 A.D.2d 528, 422 N.Y.S.2d 687 (1st Dept. 1979), aff'd, 53 N.Y.2d 1005, 442 N.Y.S.2d 475, 425 N.E.2d 863 (1981). ² Although the Court of Appeals held that deficiency in the notice was error if not justified by good cause along with a hearing on the additional portion of the statement ( People v. Greer, 42 N.Y.2d 170, 397 N.Y.S.2d 613, 366 N.E.2d 273 [1977]; see also People v. Ludolph, supra ), incomplete "sum and substance" notices were held adequate without good cause if the defense was given an opportunity to explore the issues at a hearing. People v. Brooks, supra; People v. Brotherton, 122 A.D.2d 850, 505 N.Y.S.2d 718 (2d Dept.), lv. to appeal denied, 69 N.Y.2d 709, 512 N.Y.S.2d 1034, 504 N.E.2d 402 (1986). After O'Doherty, the Huntley hearing cannot be used to cure a late notice not justified by good cause. People v. Grandenetti, 139 Misc.2d 614, 528 N.Y.S.2d 303 (Sup.Ct. N.Y.Co.1988). See also People v. Barclift, 140 A.D.2d 615, 528 N.Y.S.2d 656 (2d Dept. 1988), where the statement raised at trial differed from the notice and was held to be error, but was held on appeal to be harmless because of the strength of the other evidence.

The second line of cases, including Bennett, deals with notice of one statement when the state plans to use other separate statements. It is these cases that are applicable here. The People acknowledge in their March 31 notice that the statement was separate from the one included in the first notice. Furthermore, there is implicit acknowledgement by the People in paragraph 19 of the affirmation in opposition to the motion to preclude that there were two separate statements given by the defendant. The People assert that contents of the statement which was included in the original notice made it "reasonable to presume that the police had delved further into the defendant's claim," and that the defense would be on notice of the contents of any resulting statement.

Prior to O'Doherty, when two statements were substantively the same, notice of one was sufficient. In People v. Bennett, supra, 56 N.Y.2d 837, 453 N.Y.S.2d 164, 438 N.E.2d 870, aff'g, 80 A.D.2d 68, 438 N.Y.S.2d 389, the prosecution's notice was of a written statement in which the defendant assumed responsibility for contraband found in an apartment and in which he stated that others knew nothing about the coke in the house. The notice also disclosed that an oral...