People v. Weinstein
| Decision Date | 31 May 1988 |
| Citation | 140 A.D.2d 731,529 N.Y.S.2d 39 |
| Parties | The PEOPLE, etc., Respondent, v. Michael WEINSTEIN, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Philip L. Weinstein, New York City (Howard Friedman, of counsel), for appellant.
Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Peter A. Weinstein and Robin Bernstein, of counsel), for respondent.
Before MOLLEN, P.J., and MANGANO, EIBER and SULLIVAN, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Greenberg, J.), rendered March 14, 1986 convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is reversed, on the law, and a new trial is ordered.
Nine months after the defendant's arraignment, the People moved to serve notice of their intent to introduce at trial inculpatory statements made by the defendant to a police detective. The only explanation proffered by the People for the delay was that it resulted from an oversight on the part of the prosecutor previously assigned to the case. The court granted the People's motion and, following a Huntley hearing, ruled that the statements were admissible. Having failed to establish good cause for their noncompliance with the 15-day notice requirement of CPL 710.30, the People should not have been permitted to serve a late notice. Accordingly, it was error to admit the statements as evidence at trial ( see, People v. O'Doherty, 70 N.Y.2d 479, 522 N.Y.S.2d 498, 517 N.E.2d 213; People v. Briggs, 38 N.Y.2d 319, 379 N.Y.S.2d 779, 342 N.E.2d 557).
We reject the People's assertion that the defendant made an unsuccessful suppression motion directed at the statements which rendered them admissible notwithstanding the late notice (see, CPL 710.30[3] ). The record reveals that the defendant opposed the People's motion to allow late service, objected to the admission of the statements and never requested a Huntley hearing (see, People v. O'Doherty, supra; cf., People v. Whitaker, 106 A.D.2d 594, 483 N.Y.S.2d 100; People v. Brown, 92 A.D.2d 939, 460 N.Y.S.2d 365). Furthermore, we do not find the error in this case to be harmless.
We have reviewed the defendant's remaining contentions and find them to be either unpreserved for appellate review or without merit.
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