Opinion
2008SU48457.
Decided January 28, 2009.
ADA Michael Leinoff Suffolk County DA Office, Central Islip, NY.
Brian J. Griffin, Esq., Foley, Griffin, Jacobson Faria, LLP, Garden City, NY.
It is, ORDERED that this motion by the Defendant for preclusion of a statement not properly noticed pursuant to CPL § 710.30 is denied.
The People's CPL § 710.30 Notice, dated September 26, 2008, (Defendant's Exh. A) reflects that an oral statement was made by the Defendant to a public servant on September 20, 2008 at the "Southern State Parkway, E/B W/O Rte. 231"; however, no time is indicated on the face of the notice. The Defendant argues that the failure of the People to indicate the time at which the Defendant allegedly made her statement violates "the 15 day requirement of notice under CPL § 710.30. The only appropriate remedy is for this Court to preclude any and all in and out of court identifications [sic] of the Defendant at trial pursuant to CPL § 710.30(3)".
In the Practice Commentaries to McKinney's Consolidated Laws CPL § 710.30, Peter Preiser states that the CPL § 710.30 notice requirement has two purposes: (1) to avoid the interruption of a trial so that the Defendant can investigate the circumstances under which the possibly suppressible evidence was obtained and for the hearing that would be required in the event of a proper objection and motion for suppression ( see, People v. Briggs, 38 NY2d 319), and (2) to promote the orderly, swift and efficient determination of pre-trial motions ( see, People v. Doherty, 70 NY2d 479). However, the Court of Appeals in People v. Lopez,( 84 NY2d 425) states that the purpose of CPL § 710.30(1) is "to facilitate a Defendant's opportunity to challenge before trial the voluntariness of statements made by him" by requiring notice be given within 15 days of arraignment. People v. Lopez hold that a CPL § 710.30(1) is "to facilitate a Defendant's opportunity to challenge before trial the voluntariness of statements made by him" by requiring notice be given within 15 days of arraignment. People v. Lopez holds that a CPL § 710.30 notice is sufficient if it specified the evidence intended to be offered and contains the time, place and manner of the statement, and the sum and substance of the statement. Here, the Defendant was advised in the CPL § 710.30 notice of the Defendant's statement that the People intend to offer at trial, the date the statement was made, and the location where the statement was allegedly given. The time of the statement was not entered on the pre-printed notice.
Where errors in a CPL § 710.30 notice are so egregious that they prevent a Defendant from conducting a proper investigation and defense, preclusion is appropriate. However, minor errors, as in the matter sub judice, "which do impair a Defendant's ability to engage intelligently in motion practice do not require preclusion" ( People v. Falkoff, 13 Misc 3d 1151 citing People v. Jameson, NYLJ, June 10, 1997, at 26, col. 3; People v. Meyer, NYLJ, June 1, 2007, at 25, col. 1). Further, "[i]t is only when the notice is so erroneous as to mislead the Defendant into understanding that the noticed . . . statement was an entirely different . . . statement than the one the People actually seek to utilize that the errors cannot be corrected by amendment" ( People v. Centeno, 168 Misc 2d 172). An amendment to a CPL § 710.30 notice of statement is permissible, except to the extent that the amendment seeks to change that which is readily apparent to the Defendant from a mere reading of the notice ( see, People v. Moore, 178 Misc 2d 163). Further, where the notice contains a minor mistake and is correct in all other respects, such notice may be amended even after the notice period has run ( see, People v. Canute, 190 AD2d 745 [2nd Dept., 1993]; People v. Ocasio, 183 AD2d 921 [2nd Dept., 1992]).
Here, the Court finds that the CPL § 710.30 notice advises the Defendant as to the sum and substance of the alleged statement, the date the statement was made and the location. By specifying that the statement was made on September 20, 2008, the People put the Defendant on notice that the People were seeking to use a statement made at or about the time and place of the Defendant's apprehension for the offenses charged. The CPL § 710.30 notice is correct in all respects except for the omission of the time. It is the opinion of the Court that the CPL § 710.30 notice does not impede the defense, or prevent the Defendant from moving to suppress ( see, People v. Centeno, supra [notice which contained location of, and sum and substance of statement, but failed to include the exact time of statement was nevertheless sufficient in that it permitted the Defendant to identify the alleged statement and to move for a hearing]; see also, People v. Holmes, 170 AD2d 534 [2nd Dept., 1991]). Consequently, the Court holds that CPL § 710.30 notice, dated September 26, 2008, to be sufficient, although it contains a flaw. Further, the People shall be permitted to amend the CPL § 710.30 notice, which is otherwise adequate, to add the time ( see, People v. Centeno, supra; People v. Ocasio, supra). The Defendant shall be permitted to move for additional relief, if so advised.
Accordingly, the Defendant's motion is denied.