Opinion
No. 2013–2482SCR.
09-18-2015
The PEOPLE of the State of New York, Appellant, v. Stephen J. TUTHILL, Jr., Respondent.
Opinion
Appeal from an order of the Justice Court of the Town of Southold, Suffolk County (William H. Price, Jr., J.), dated October 9, 2013. The order granted the branch of defendant's motion seeking to suppress statements he had made to the police.
ORDERED that the order is affirmed.
At approximately 10:15 p.m. on Saturday, April 28, 2012, Town of Southold police received a report that a vehicle had crashed into a garage of a home in Mattituck, Town of Southold, Suffolk County. The police observed a portion of a bumper and a license plate at the crash site. After an investigation, the police learned that the license plate was from a vehicle owned by defendant.
Several minutes later, Town of Southold Police Officer Peter Jacobs, who had arrived at defendant's home, obtained an inculpatory statement from defendant. Defendant subsequently made additional inculpatory statements, while Officer Jacobs administered field sobriety tests to defendant. The additional statements and the tests were recorded by equipment in Jacobs' patrol car. Defendant was arrested and ultimately charged with aggravated driving while intoxicated per se (Vehicle and Traffic Law § 11922–a[a] ), common-law driving while intoxicated (Vehicle and Traffic Law § 11923 ), and leaving the scene of an incident causing property damage without reporting (Vehicle and Traffic Law § 6001[a] ).
Defendant moved to suppress both the initial inculpatory statement and the additional statements that had been recorded by the equipment in Jacobs' patrol car. Officer Jacobs was the only witness at the pretrial Huntley hearing (see People v. Huntley, 15 N.Y.2d 72 1965 ). Jacobs testified that two other police officers had arrived at defendant's home a few minutes before Jacobs. The two officers walked around the outside of defendant's home, tapping on the windows. One of the officers located defendant in the basement, and yelled several times for defendant to come outside to speak with them. Officer Jacobs, who was positioned near the front door, could not see whether the lights were on in the basement. One or two minutes later, defendant exited the house, accompanied by the two officers. Defendant was not wearing shoes. The two officers and defendant approached Officer Jacobs. It was only at that point that defendant provided Jacobs with an initial inculpatory statement. Several minutes later, while Jacobs administered field sobriety tests, defendant made additional inculpatory statements that were recorded. A CPL 710.30 notice erroneously indicated that defendant had been provided with the recording. In fact, defendant was not provided with the recording until the date of the commencement of the pretrial Huntley hearing, more than one year later.
By order dated October 9, 2013, the Justice Court suppressed the initial inculpatory statement defendant had made to Jacobs, on the ground that the People had failed to establish that the statement had been voluntarily made. The Justice Court also suppressed the audio portion of the recording made by the equipment in Officer Jacobs' patrol car, as a discovery sanction.
The People appeal from the order pursuant to CPL 450.20(8), and have filed a statement pursuant to CPL 450.50(2) asserting that the deprivation of the use of the evidence ordered suppressed has rendered the sum of the proof available to the People to be so weak in its entirety that any reasonable possibility of prosecuting the charges to a conviction has been effectively destroyed.
The People bear the burden of proving, beyond a reasonable doubt, and based on the totality of the circumstances, that a defendant's statements were voluntarily made (see People v. Guilford, 21 NY3d 205, 208–209 2013; People v. Witherspoon, 66 N.Y.2d 973, 974 1985; People v. Valerius, 31 N.Y.2d 51, 53–55 1972; People v. Huntley, 15 N.Y.2d at 78; People v. Lofrese, 15 Misc.3d 134[A], 2007 N.Y. Slip Op 50726[U] [App Term, 9th & 10th Jud Dists 2007] ). The People can meet their burden through the testimony of a police officer who elicited the statements from the defendant, regarding the circumstances leading to the statements, as the People are not mandated to produce all of the police officers who had contact with the defendant (see People v. Witherspoon, 66 N.Y.2d at 974; People v. Drouin, 115 AD3d 1153, 1156 2014; People v.. Holloway, 16 AD3d 1062, 1063 2005 [testimony by partner of police officer identified in CPL 710.30 notice met People's burden where the partner and the officer identified in the notice were together from the time they left their police vehicle until the defendant spontaneously made a statement while he was being handcuffed]; People v. Lofrese, 15 Misc.3d 134[A], 2007 N.Y. Slip Op 50726[U] ). However, if the defendant presents a “bona fide factual predicate” that other police officers possess “material evidence ... of whether the statements were the product of overtly or inherently ... coercive methods,” the People are required to call such officers at a pretrial Huntley hearing to meet their burden (People v. Witherspoon, 66 N.Y.2d at 974; cf. People v. Caballero, 23 AD3d 1031, 1032 2005; People v. Drumm, 15 AD3d 910, 910–911 2005 ).
In the case at bar, defendant presented such a bona fide factual predicate. The People “did not offer any explanation or reason” for their failure to call the two officers who had responded to defendant's home before Officer Jacobs (People v. Valerius, 31 N.Y.2d at 54). The testimony at the hearing established that Officer Jacobs did not know whether the lights were on in the basement of defendant's home where defendant had been located. Moreover, there was an interval during which Jacobs waited near the front door of the house, until Jacobs saw defendant come out of the house, accompanied by the two other officers.
While the interval was short, Jacobs had no way of knowing what had occurred between the time defendant was located in the basement of his home, and the time defendant walked toward Jacobs, accompanied by the two other officers. Consequently, the Justice Court correctly determined that the People had failed to meet their burden of proving, beyond a reasonable doubt, that defendant's initial inculpatory statement to Jacobs, prior to the administration of field sobriety tests, was voluntary.
Moreover, as a defendant's statements to police “are highly material and relevant to a criminal prosecution ... such statements are always discoverable, even when the People do not intend to offer them at trial” (People v. Combest, 4 NY3d 341, 347 2005; see CPL 240.201 ). The appropriate sanction for a failure to produce is left to the sound discretion of the trial court (see CPL 240.701; People v. Jenkins, 98 N.Y.2d 280, 284 2002; People v. Carpenter, 88 AD3d 1160, 1161 2011 ). Here, the People had erroneously represented that they had provided defendant with the recording containing defendant's additional inculpatory statements made while field sobriety tests were administered to him. The Justice Court suppressed the audio portion of the recording, but permitted the admission of the video portion of the recording at trial, which would show defendant's performance with respect to the field sobriety tests. While defendant was provided with the recording at the commencement of the Huntley hearing, the People's erroneous representation was sufficiently prejudicial to defendant to warrant the suppression of the audio portion of the recording. Thus, the sanction imposed by the Justice Court did not constitute an abuse of discretion.
Accordingly, the order is affirmed.
IANNACCI, J.P., TOLBERT and CONNOLLY, JJ., concur.