People v. Oliver

• Citation: 493 N.Y.S.2d 392,129 Misc.2d 432
• Parties: The PEOPLE of the State of New York v. Ernest OLIVER, Defendant.
• Decision Date: 12 July 1985
• Court: New York City Court

Page 392

493 N.Y.S.2d 392

129 Misc.2d 432

The PEOPLE of the State of New York v. Ernest OLIVER, Defendant.

Criminal Court of the City of New York Kings County.

July 12, 1985.

Elizabeth Holtzman, Dist. Atty. by Seth Lieberman, Brooklyn, for people.

Caesar D. Cirigliano, Brooklyn by Edward Friedman, for defendant.

STEVEN W. FISHER, Judge.

This motion and cross-motion arise out of the People's failure to serve, within fifteen days of arraignment, notice of their intention to offer at trial evidence that the defendant made a statement following his arrest (see, C.P.L. 710.30). In this case notice was not given until some nine months after the defendant's arraignment, and the District Attorney candidly concedes that the failure to give timely notice was the result of simple inadvertence. With equal candor, however, the defendant concedes that the delay in serving the notice has caused him no prejudice, as he has had an ample opportunity to prepare and file a motion to suppress the statement on constitutional grounds.

The precise issue presented, therefore, is whether, even in the absence of prejudice to the defense, C.P.L. 710.30 requires preclusion of evidence of the defendant's statement where the People cannot offer good cause for their failure to give statement-notice within fifteen days after the defendant's arraignment.

The underlying facts are largely undisputed. On July 21, 1984, the defendant was arraigned on a felony complaint charging him with assault in the second degree, attempted burglary in the first degree, and criminal possession of a weapon in the fourth degree. No notice pursuant to C.P.L. 710.30 was served at the arraignment. On August 28, 1984, the People moved to reduce the two felony charges to assault in the third degree and attempted criminal trespass in the second degree. Again no notice of any statement was served.

Notwithstanding the People's failure to serve such notice, however, the defendant served a "Demand for Discovery" in which he sought disclosure of "[a]ny written, recorded or oral statement of the defendant * * * made to a public servant * * * or to a person then acting under his direction or in cooperation with him" and "[a]ny tapes or other electronic recordings which the prosecutor intends to introduce at trial * * *." As to the first demand, the prosecutor answered: "None known to the People;" as to the second, his response was: "Not applicable."

The case did not quickly proceed to trial. Plea negotiations continued. Adjournments were required as the case was re-assigned from one Assistant District Attorney to another, and from one Legal Aid Attorney to another. There was apparently some difficulty in obtaining certain relevant medical records and, once they were secured, defense counsel required additional time to study them. On at least one occasion, an adjournment was necessary because defense counsel was engaged in another trial.

In any event, when the case appeared in a trial part on May 2, 1985, the Assistant District Attorney informed defense counsel for the first time that the defendant had indeed made a statement following his arrest, and that the statement had been videotaped. The assistant provided counsel with the substance of the statement, informed him of the People's intention to offer it as evidence at trial, and arranged to have him view the videotape. The case was then adjourned for the filing of appropriate motions.

As a consequence, the People now formally move for permission to serve late notice pursuant to C.P.L. 710.30. The defendant, relying on the same statute, cross-moves to preclude introduction of the statement for failure to serve timely notice. The defendant additionally seeks suppression of the statement on the ground that it was taken in violation of his constitutional rights.

In their application, the People candidly state that their failure to serve timely notice and their inaccurate responses to the defendant's Demand for Discovery "were inadvertent good faith errors due to the number of motions that [the assigned Assistant District Attorney] had to answer prior to his transfer to [another bureau] of the District Attorney's Office which was imminent at that time." ¹ The People argue however, that, where notice is given prior to trial and where the delay in service has caused the defendant no prejudice, the severe remedy of preclusion is unwarranted.

The defendant contends that the absence of prejudice is irrelevant. He maintains that C.P.L. 710.30 mandates preclusion whenever timely notice has not been served unless the People demonstrate good cause for their failure to comply with the statute.

C.P.L. 710.30 provides in pertinent part:

"1. Whenever the People intend to offer at trial * * * 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, * * * they must serve upon the defendant a notice of such intention specifying the evidence intended to be offered."

"2. Such notice must be served within fifteen days after arraignment and before trial, and upon such service the defendant must be accorded reasonable opportunity to move before trial * * * to suppress the specified evidence. For good cause shown, however, the court may permit the People to serve such notice, thereafter and in such case it must accord the defendant reasonable opportunity thereafter to make a suppression motion.

"3. In the absence of service of notice upon a defendant as prescribed in this section, no evidence of a kind specified in subdivision one may be received against him upon trial, unless he has, despite the lack of such notice, moved to supress such evidence and such motion has been denied and the evidence thereby, rendered admissible * * *." (Emphasis supplied)

There is uniform agreement that this statute and its predecessor (Code Crim.Proc. § 813-f) were intended to avoid surprise and to give a defendant an adequate opportunity to prepare and file an appropriate pre-trial suppression motion (see, e.g. People v. Greer, 42 N.Y.2d 170, 178, 397 N.Y.S.2d 613, 366 N.E.2d 273; People v. Briggs, 38 N.Y.2d 319, 322, 379 N.Y.S.2d 779, 342 N.E.2d 557; People v. Harris, 25 N.Y.2d 175, 177, 303 N.Y.S.2d 71, 250 N.E.2d 349, affd. 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1; People v. Ross, 21 N.Y.2d 258, 262, 287 N.Y.S.2d 376, 234 N.E.2d 427; see, also Bellacosa, Practice Commentary, C.P.L. § 710.30, McKinney's, Book 11A, pp. 113-114 [1984] ), Plainly, that purpose has been fulfilled in this case as the defendant, claiming no prejudice, has had an adequate opportunity to prepare a motion challenging the voluntariness of the statement. In my view, however, the inquiry cannot end there for, were it otherwise, the statute would be rendered virtually meaningless. The prosecution could, without sanction, reveal the existence of a statement even on the eve of trial provided only that an adjournment were granted--undoubtedly chargeable to the defense (see C.P.L. 30.30, subd. 4, par. [a] )--to permit the preparation and submission of a motion to suppress.

It is simply untenable to suggest, as the People apparently do, that motions to preclude under C.P.L. 710.30 ought to turn solely upon whether or not the statute's underlying purposes appear to have been satisfied in the particular instance. The Legislature has seen fit to advance those purposes and to promote an orderly and prompt resolution of pre-trial motions through the enactment of a specific statutory timetable (see People v. Briggs, supra 38 N.Y.2d at 323, 379 N.Y.S.2d 779, 342 N.E.2d 557; People v. Merced, 119 Misc.2d 238, 240, 462 N.Y.S.2d 555 [Crim.Ct., N.Y.Co., LANE, J.] ). The People's approach would frustrate that legislative design because it would "condone and encourage noncompliance in the prosecutor's office and * * * undermine the salutary purposes of the statute." (People v. Briggs, supra, 38 N.Y.2d at 324, 379 N.Y.S.2d 779, 342 N.E.2d 557). Accordingly, I reject the argument that the absence of prejudice to the defendant's ability to prepare and submit a motion to suppress is dispositive (see, People v. Clarke, 121 Misc.2d 1081, 469 N.Y.S.2d 840 [Crim.Ct., Kings Co., CAMMER, J.]; cf. People v. Merced, supra; People v. Weeks, 123 Misc.2d 540, 474 N.Y.S.2d 238 [Crim.Ct., NY Co., MARRUS, J.] )

That is not to say, however, that the absence of prejudice is always irrelevant. Where the People have demonstrated some good cause for their failure to comply with the statute, the court is empowered, but is not obligated, to grant leave to serve late notice (see C.P.L. 710.30, subd. 2). In such cases prejudice assumes great significance because the determination as to whether to permit late service will depend upon a balance between the reason for the failure to give timely notice and the prejudice caused to the defendant by such failure (see People v. Briggs, supra, 38 N.Y.2d at 323, 379 N.Y.S.2d 779, 342 N.E.2d 557).

Moreover, although the caselaw in the area does not appear to be entirely consistent, there is support for the proposition that in certain narrowly defined circumstances--all involving an absence of prejudice to the defendant--a statement may be received at trial even though the People have offered no excuse for their failure to serve timely notice.

Where, for example, evidence establishes that the defense had actual notice, not merely of the existence of the statement, but of the prosecutor's intention to introduce the statement at trial, the failure to serve timely notice, even in the absence of good cause, will not require preclusion (see, People v. Michel, 56 N.Y.2d 1014, 1015, 453 N.Y.S.2d 639, 439 N.E.2d 355; see also People v. Costello, 101 A.D.2d 244, 249, 476 N.Y.S.2d 244).

Additionally, preclusion is not required notwithstanding an inexcusable failure to serve timely notice where the statement in question is...