People v. Wells
| Decision Date | 14 September 1987 |
| Citation | 133 A.D.2d 385,519 N.Y.S.2d 553 |
| Parties | The PEOPLE, etc., Respondent, v. Frank WELLS, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Stephens, Buderwitz & Baroni, White Plains (Joseph M. Buderwitz and Joseph M. Buderwitz, Jr., of counsel), for appellant.
Carl A. Vergari, Dist. Atty., White Plains (John J. Sergi and Richard E. Weill, of counsel), for respondent.
Before MOLLEN, P.J., and THOMPSON, BRACKEN and BROWN, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Battisti, J.), rendered June 14, 1985, convicting him of promoting gambling in the second degree and possession of a gambling device, after a nonjury trial, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant, a bartender at Billy's Pub located in Mount Vernon, New York, was jointly indicted and tried with B.P. Tavern, Inc., the owner of the pub, together with two shareholders and directors of B.P. Tavern, Inc., and another employee for certain gambling offenses in connection with the operation of a "Joker Poker" machine at the pub. The nonjury trial resulted in convictions of four of the five defendants. The defendant herein initially contends that statements he made to an undercover police officer were improperly admitted into evidence because he was not provided with written notice of those statements pursuant to CPL 710.30. The trial court ruled that these statements constituted res gestae statements and thus the People were not required to provide the defendant with notice thereof. We agree. When there is no question as to the voluntariness of a defendant's statements to a public servant, as in the case of res gestae statements, notice to the defendant of the intention to offer such statements into evidence is not required (see, People v. Greer, 42 N.Y.2d 170, 397 N.Y.S.2d 613, 366 N.E.2d 273; People v. Early, 85 A.D.2d 752, 445 N.Y.S.2d 252; People v. Holloway, 77 A.D.2d 122, 125, 432 N.Y.S.2d 905; People v. Bostic, 97 Misc.2d 1039, 412 N.Y.S.2d 948). Moreover, contrary to his contention on appeal, the defendant did not have a right to the discovery of these statements since CPL 240.20(1)(a) specifically limits a defendant's statutory right of discovery to statements "other than [those made] in the course of a criminal transaction".
We also reject the defendant's contention that statements he made to the Assistant District Attorney on August 10, 1984, were improperly admitted into evidence, allegedly in violation of his right to counsel. Although a claimed deprivation of the State constitutional right to counsel may be raised for the first time on appeal, a sufficient factual record...
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...notice to the defendant of the intention to offer such statements into evidence is not required (citation omitted)." People v. Wells, 133 A.D.2d 385, 519 N.Y.S.2d 553 app'l. den. 70 N.Y.2d 939, 524 N.Y.S.2d 690, 519 N.E.2d 636; People v. Early, 85 A.D.2d 752, 445 N.Y.S.2d Use by the People ......
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