Opinion
2011-05-16
PEOPLE of the State of New York, Plaintiff,v.Kurtis N. PORTER, Defendant.
R. Michael Tantillo, Esq., District Attorney, William J. Hart, Esq., of counsel, Attorney for People.Leanne Lapp, Esq., Acting Public Defender, Carrie W. Bleakley, Esq., Attorney for Defendant.
R. Michael Tantillo, Esq., District Attorney, William J. Hart, Esq., of counsel, Attorney for People.Leanne Lapp, Esq., Acting Public Defender, Carrie W. Bleakley, Esq., Attorney for Defendant.
This is a decision on a motion filed by defense counsel. The defendant is charged with Assault in the Third Degree (PL § 120[1] ).
The defendant has moved to preclude possible identification testimony at trial because the People failed to timely serve notice of any testimony regarding the identification of the defendant by a witness ( see CPL § 710.30[1][b],[2] ). The following facts are pertinent to the issued raised before the court:
The defendant was arrested in the early morning of February 6, 2011 and charged with Assault in the Third Degree. On February 6, 2011 at approximately 4:30 a.m. an officer served upon the defendant a Notice of Intention to Offer Evidence. The notice included oral statements allegedly made by the defendant, however, the notice did not include information concerning any pre-trial identification of the defendant. An information was filed with the court charging the defendant with Assault in the Third Degree. The defendant was arraigned upon this information on February 7, 2011. On March 7, 2011 a Notice of Intention to Offer Evidence was served upon the defendant. This notice states that a show-up identification procedure was conducted at 3:05 a.m. on February 6, 2011 at Park Place at Washington Street, and an identification was made by William K. Schweitzer.
The defendant has submitted an omnibus motion which includes the request for preclusion of any identification testimony because the People failed to serve a timely notice of any testimony regarding the identification of the defendant by a witness ( see CPL § 710.30[1][b] ). In response to the defendant's motion, the People have filed an amended information charging the defendant with Assault in the Third Degree. The amended information charges the defendant with the same offense based upon the same alleged facts. The People also reference supporting depositions from the arresting officer, Officer Arroyo, and a supporting deposition from Dr. Onyekaba in the second information that was not referenced in the first information.
The People argue that the defendant should be arraigned on the amended information filed with the court which would allow the People a new fifteen day time period to serve the notice of any testimony regarding the identification of the defendant by a witness. The People state that such arraignment and subsequent service of notice would render the defendant's argument moot. In support of their argument the People cite People v. Littlejohn, 184 A.D.2d 790, 585 N.Y.S.2d 495 (2nd Dept 1992). In Littlejohn the defendant was indicted and arraigned and no 710.30
notice was served. A second indictment was filed against the defendant and a 710.30 notice was filed at that time. The defendant argued that 710.30 notice was untimely because the notice was not served within fifteen days of the first arraignment. The court determined in Littlejohn that service of the notice at the arraignment of the second indictment caused no delay to pretrial motions and that the requirements of CPL § 710.30 were satisfied. This court has reviewed Littlejohn and determines that the case is not analogous to the situation before this court.
The court has reviewed the arguments made by counsel and the informations filed with the court. The court determines that the People's characterization of the amended information filed with the court as a “superceding” information is incorrect. Informations are considered superceding when the subsequent information charges a different offense or alleges facts different from the original charges ( see CPL § 100.50). In the case before this court the amended information filed by the People does not charge a different offense, nor does it allege different facts. The theory of prosecution, as stated in the accusatory part of the information, has changed. The appropriate legal procedure to change the theory of prosecution from reckless assault to intentional assault in the accusatory part of the information is an amendment to the initial information adding a charge supported by the sworn factual allegations and that is what the People have done in this case ( see CPL § 100.45[3] ).
This court accepts the second information filed by the People as an amended information. The court does not recognize the second information filed by the People as a superceding information. Based upon the fact that the information is amended and not superceded, the People's March 7, 2011 service of the Notice of Intention to Offer Evidence of a show-up identification procedure is untimely ( see CPL § 710.30[1][b],[2] ). The People have failed to show this court good cause to permit the People to serve a late notice ( see CPL § 710.30[2] ).
Since the People have failed to timely comply with the mandatory disclosure provision of CPL § 710.30, both the out-of-court and in-court identifications of the defendant by the alleged victim are precluded regardless of the existence of an independent basis for the identification ( see People v. McMullin, 70 N.Y.2d 855, 523 N.Y.S.2d 455, 517 N.E.2d 1341 [1987]; People v. Perez, 177 A.D.2d 657, 576 N.Y.S.2d 359 [2nd Dept 1991] ).This shall constitute the decision and order of this court.