Opinion
17–2332
03-16-2018
The PEOPLE of the State of New York, v. Shaun RHAMES, Defendant.
Albert M. Annunziata, Jr. Esq., Westchester County District Attorney, Mount Vernon Branch, 700–720 White Plains Road, Suite 318, White Plains, New York 10583, Attorney for Defendant.
Albert M. Annunziata, Jr. Esq., Westchester County District Attorney, Mount Vernon Branch, 700–720 White Plains Road, Suite 318, White Plains, New York 10583, Attorney for Defendant.
The defendant is charged with Attempted Assault in the Third Degree, a violation of Penal Law § 110/120.00(1); Menacing in the Second Degree, a violation of Penal Law § 120.14(1) ; Criminal Possession of a Weapon in the Fourth Degree, a violation of Penal Law § 265.01(2) ; and Harassment in the Second Degree, a violation of Penal Law § 240.26(1).
Defendant moves for an order 1) precluding statements for which proper notice was not given pursuant to CPL § 710.30, or in the alternative, granting a Huntley/Dunaway hearing to determine the admissibility of said statements; 2) suppression of physical evidence on the grounds that such evidence was seized unlawfully as the product of an illegal stop and an illegal arrest made without probable cause.
It is alleged that on August 21, 2017, at approximately 6:33 p.m., at 7 West 2nd Street, in the City of Mount Vernon, County of Westchester, State of New York, the defendant approached Jae Hin and struck her in the face with a closed fist. The defendant then allegedly went into her vehicle, and took out a knife. She then came back toward the victim and while waving the knife at the victim, stated, "Don't touch me. I'll slice you up." Both the victim and the defendant made 911 calls to members of the Mount Vernon Police Department.
Members of the Mount Vernon Police Department arrived on scene shortly thereafter and upon speaking to the defendant, she told the police that she punched the victim because the victim was beating up a little boy. The defendant also stated that she went to her vehicle and got a knife and threatened to cut the victim with said knife. The defendant was then placed under arrest and transported to the Mount Vernon Police Department.
While being transported to the Mount Vernon Police Department it is alleged that the defendant admitted to Police Officer Hunt that she punched the victim because the victim was beating up a little boy and she went back to her car and retrieved the knife that she threatened the victim with.
The initial statements made by the defendant were at the scene of the incident and were told to Police Officer Williams, and heard by Police Officer Castelhano. No notice was given of this statement. The second and similar statements made to Police Officer Hunt while being transported to the Mount Vernon Police Headquarters, was noticed pursuant to CPL 710.30 at the defendant's arraignment.
On October 5, 2017, current counsel was assigned to the case. Counsel asked orally for a Huntley Hearing on November 16, 2017, approximately 85 days after the defendant was arraigned. Despite the statutory time to file motions having expired, the People consented to a Huntley Hearing in the interest of justice as new counsel was only on the case approximately 42 days.
On February 22, 2018, Rosario material was provided to defense counsel in anticipation of the Huntley Hearing scheduled to take place that day. Upon reviewing the Rosario material, counsel learned of the first statements made by the defendant to law enforcement which were not part of the original CPL 710.30 notice contained in the misdemeanor information. Additionally, counsel learned that members of law enforcement recovered a weapon, a knife, from the defendant's vehicle at the time of the arrest.
Upon learning of the unnoticed statement, defendant moved to preclude its use at trial, arguing that the People failed to provide adequate notice pursuant to CPL 710.30(1)(a). Oral application was also made to the court to extend the Huntley Hearing to include a Mapp/Dunaway hearing as it relates to the recovery of the knife recovered from the defendant's car. As the result of court congestion, the hearing was adjourned to March 6, 2018 and counsel was directed to make the requested application by way of an Order to Show Cause.
CPL 710.30(1)(a) requires the People to serve notice of their intention to introduce evidence of statements made by defendant to law enforcement. The People must serve this notice within 15 days of arraignment [ CPL 710.30(2) ]. The purpose of the statute is to give defendant adequate time to investigate the circumstances under which a statement was made and to allow defendant adequate time to prepare for a hearing as to the statement's voluntariness. CPL 710.30(1)(a) also permits an orderly hearing and determination of the voluntariness of statements prior to trial. People v. Briggs , 38 NY2d 319, 322–323 (1975).
Defendant asserts that statements not noticed at arraignment must be precluded because the People failed to comply with CPL 710.30(1)(a). The People counter that the notice given at arraignment was sufficient to apprise defendant of the existence of the unnoticed statements. The People also oppose preclusion on the ground that the unnoticed statements were included in the superceding accusatory instrument and in the People's response to defendant's omnibus motion.
The absence of timely notice pursuant to CPL 710.30(1)(a) cannot be cured by documents turned over in discovery or recited in an accusatory instrument. See People v. Lopez , 84 NY2d 425, 428 (1994) ; People v. Phillips , 183 AD2d 856 (2d Dept. 1992) ; People v. Calise , 167 Misc 2d 277, 280 (Crim Ct Bronx County 1996) (Sussman, J.). Nor does the absence of prejudice to defendant relieve the People of their obligation to provide timely notice. People v. Lopez, supra.
Notwithstanding the lack of timely notice, the courts have held that CPL 710.30(1)(a) is not violated if the unnoticed statements are substantially consistent with statements that properly were noticed. See People v. Cooper , 78 NY2d 476, 484 (1991) ; People v. Bennett , 56 NY2d 837, 839 (1982). The cases in which this principle has been applied generally involve additional statements made to the same police officer in the course of a single conversation. See , e.g. , People v. Cooper , 78 NY2d 476, 484 (1991) ; People v. Garcia , 290 AD2d 299 (1st Dept 2002) ; People v. Morris , 248 AD2d 169 (1st Dept 1998) ; People v. Martinez , 203 AD2d 212 (1st Dept 1994).
An alternative exception to the requirements of CPL 710.30(1)(a) has been recognized where the People serve notice of a statement in one form but fail to notice a substantially similar statement in another form. See , e.g. , People v. Bennett , 56 NY2d 837 (1982) (oral statement substantially same as written confession); People v. Valdivia , 236 AD2d 225 (1st Dept 1997) (statements in written form substantially consistent with noticed statements); People v. Kelly , 200 AD2d 440 (1st Dept 1994) (videotaped statement substantially identical to noticed statements). But see People v. Phillips , 183 AD2d 856, 858 (2d Dept 1992) (notice of videotape did not satisfy CPL 710.30(1)(a) as to oral statement).
Here, the unnoticed statements to Police Officer Williams at the location of the defendant's arrest were made earlier in time, at a different location, and to a different police officer than the noticed statements, and thus does not fall squarely within either of the recognized exceptions to the requirements of CPL 710.30(1)(a).
The People contend that preclusion is not required because the defendant waived this request by moving to suppress the noticed statements, however, in People v. St. Martine , 160 AD2d 35, 40 (1st Dept. 1990), the court rejected a similar argument holding that the defendant did not "by seeking to suppress any and all statements, in effect waive his right to object to the admission of statements of which he was at the time of the motion still unacquainted."
The failure to serve timely notice cannot be cured by the defendant's opportunity to challenge the statement upon learning of it during the suppression hearing. Nor did defendant waive the right to seek and obtain preclusion when he moved to suppress "any and all" statements (id.). The requirement of notice within 15 days is strictly adhered to except for good cause shown.
Thus, as timely notice of the defendant's statements to the police at the scene of her arrest was not provided pursuant to CPL § 710.30 (1) (a), and as the People have not demonstrated any good cause for the delay in disclosure, defendant's motion for preclusion of the oral statements made to Police Officer Williams at the scene of her arrest, is granted. The People are precluded from using the statements on their case in chief.
The defendant also seeks a Mapp/Dunaway Hearing to challenge the admissibility of the knife recovered from her vehicle at the scene of the crime. Defendant makes this motion almost 180 days after the defendant was arraigned. The People oppose the motion on the grounds that neither the defendant's first counsel or current counsel ever requested to conduct any form of discovery during the appropriate time frame to illicit whether physical evidence was recovered from the defendant.
CPL 255.20 provides that all pre-trial motion shall be included in the same set of motion papers and that the motion shall be served or filed within forty-five days of arraignment. With two notable exceptions, any pre-trial motion which does not comply with the above requirement may be summarily denied. The two exceptions are as follows. First, the court must entertain and decide any motion based upon grounds of which the defendant could not, with due diligence, have been previously aware, or which, for other good cause, could not reasonably have been raised within the forty-five day period or included within a single set of motion papers. Second, the Court may, in its discretion, entertain and decide any untimely motion, in the interest of justice and for good cause shown.
Here, defense counsel argues that it wasn't until a Case Supplemental Narrative Report was provided to him in anticipation of a Huntley Hearing that was scheduled for February 7, 2018, that he was first made aware that a knife was recovered by Police Officer Castelhano from the defendant's automobile.
As noted by the Court of Appeals, ‘[t]he time restrictions fixed by CPL 255.20 are not casual" ( People v. Davidson , 98 NY2d 738, 739 [2002] ) and are directly related to "the strong public policy to further orderly trial procedures and preserve scarce trial resources" ( People v. Lawrence , 64 NY2d 200, 2017 [1984] ).
This Court rejects the defendant's contention that the motion to suppress should be granted, albeit late, because it is based upon evidence discovered in the Rosario material that was turned over before the scheduled Huntley Hearing. This Court finds that the defense counsel could have with due diligence, discovered in a timely manner the recovery of the knife. All defense attorneys practicing in the Mount Vernon City Court are aware, or should be aware of the open file discovery policy of the District Attorney's Office. Defense counsel are also reminded that pursuant to the Chief Judge's Order that is provided to both the defense bar and the prosecution at all arraignments, their obligation to, amongst other things, to perform a reasonable investigation of both the facts and the law pertinent to the case (including reviewing all discovery materials obtained from the prosecution), or if appropriate, make a reasonable professional judgment not to investigate a particular matter. Thus, this belated suppression motion is not based "upon grounds of which she could not with due diligence, have been previously aware" ( CPL 255.20[3] ); see People v. Coates , 157 AD2d 843, 844 [1990] ; see also People v. Young , 278 AD2d 437, 438 [2000] ; People v. Toxey , 220 AD2d 204 [1995] ).
Accordingly, defendant's motion for preclusion of her statements made that were not noticed pursuant to CPL § 710.30 (1)(a), is granted. That branch of defendant's motion for a Huntley/Dunaway hearing, is denied.
This constitutes the Decision and Order of this Court.