People v Santa Maria

[*1] People v Santa Maria 2005 NY Slip Op 50692(U) Decided on April 25, 2005 County Court, Westchester County Colangelo, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 25, 2005
County Court, Westchester County

THE PEOPLE OF THE STATE OF NEW YORK,

against

Frank Robert GARCIA SANTA MARIA, Defendant.



04-06129M



JEANINE PIRRO, DISTRICT ATTORNEY

By Karen D. Herbert, ADA

111 Dr. Martin Luther King Jr. Blvd.

White Plains, NY 10601

SHARON P. ROSE, ESQ.

7-11 South Broadway, Suite 304

White Plains, NY 10601

Attorney for Defendant

John P. Colangelo, J.

Defendant Frank Robert Garcia Santa Maria ("Santa Maria" or "Defendant") is charged on two separate dockets. On docket 04-60129M, Defendant is charged with one count of Assault in the Third Degree (an A Misdemeanor), one count of Menacing in the Second Degree (also an A Misdemeanor) and one count of Harassment in the Second Degree (a Violation). On docket 04-60130M, Defendant is charged with two counts of Driving While Intoxicated (VTL §§ 1192.2 and 1192.3, Unclassified Misdemeanors) and leaving the scene of a property damage accident (VTL § 600 (1)(A), (a Violation). As the accusatory instruments allege, both dockets revolve around a serious of incidents that allegedly took place during the early morning hours of May 10, 2004 in New Rochelle, New York. According to the accusatory, Defendant had an altercation with the alleged victim, Noelia Jiminez ("Jiminez"), then left her apartment and drove his car for a few minutes before getting into an automobile accident, in connection with which he was charged with Driving While Intoxicated.

Defendant was questioned by the New Rochelle Police at the scene of the automobile accident and again at Police Headquarters. The People allege that Defendant made several statements from the time of the accident through the interview and booking process at the Police Department. The People filed two CPL 710.30 notices which, they contend, cover most but not of all Defendant's statements.

After Defendant left Ms. Jimenez's apartment, Ms. Jimenez placed a 911 call to the police. When the police failed to arrive at her home within ten minutes of the first call, she made [*2]a second 911call. When Officer Rivera did arrive, he questioned her regarding Defendant and the alleged incident. The People have indicated to the Court and defense counsel that since they anticipate that the alleged victim, Ms. Jiminez, will be unavailable as a witness at the time of trial, the People will seek to introduce the two 911 calls as well as Ms. Jiminez's statements to Officer Rivera.

The procedural posture of this case is as follows: After Defendant's Ominous Motion, the People served a Consent Order and provided certain discovery to Defendant. A pretrial conference was held on November 15, 2004 at which time a jury trial date was set for January 12, 2005, and a suppression hearing scheduled for December 22, 2004. On December 22, 2004, Defendant withdrew his request for a suppression hearing. Also at that conference, the People advised Defendant of an additional statement made by Defendant to the police, and counsel agreed that such statement would be the subject of a voluntariness hearing on January 12, 2005, immediately before the trial. On January 7, 2005, defense counsel advised the District Attorney and the Court that Defendant would not be ready for trial on January 12, but would instead seek to make a motion to preclude statements by Defendant to the police which, the defense claims, were not properly noticed under CPL 710.30, and to suppress pursuant to Crawford v. Washington, 541 U.S. 36 (2004) the 911 tape recordings of the alleged victim as well as the alleged victim's statement to Officer Rivera. The Court granted Defendant's request, and the instant motion followed.

CPL § 710.30 and Defendant's Motion to Preclude.

Defendant has moved to preclude any use by the People of several statement to police officers made by Defendant on the ground that such statements were either not properly noticed under CPL 710.30 or not noticed at all. All such alleged statements were made, the People contend, within a few hours of each other in the early morning hours of May 10, 2004. The People oppose Defendant's motion, and seek to use such statements either fully or in some limited fashion.

The alleged statements fall into one of two categories: statements as to which the People concede that no CPL 710.30 notice was provided, and statements for which the People claim notice was provided but with respect to which Defendant contends the notice was insufficient, on one or more grounds, to cover the statements allegedly made. With respect to the second category of statements, Defendant argues that the People's failure to specify the precise date, time, place and content of the statement in the 710.30 notices renders such notices deficient and amounts to a failure to provide any notice whatsoever.

For the reasons set forth below, this Court holds that the admittedly unnoticed statements may not be used by the People on their direct case, but may be used on cross examination of Defendant should he take the stand, subject to a voluntariness hearing regarding such statements to be held before trial. All of the remaining statements save one, as recounted below, were properly noticed and may be used by the People for all purposes.

The Unnoticed Statement

As recounted extensively by both parties in their papers, the People first revealed to Defendant and the Court at a December, 2004 pre-trial conference that they had discovered during their trial preparation an oral statement made by Defendant to Police Officer Conca at the motor vehicle accident scene. It is well settled that knowledge of a police officer of a statement [*3]by a defendant is imputed to the District Attorney's office. Accordingly, the failure by the prosecutor to discover such a prior statement will rarely constitute "good cause" under CPL 710.30 that would justify admission of the statement for all purposes. See, e.g., People v. Briggs, 38 NY2d 319 (1975); People v. Spruill, 47 NY2d 869 (1979); People v. O'Doherty, 70 NY2d 479 (1987).

Perhaps for this reason, the People do not seek to use this statement on their direct case, but to use it only on cross-examination should the occasion arise. Citing one Supreme Court case from New York County, People v. Moore, 159 Misc 2d 501 (Sup. Ct., NY Co. 1993), Defendant argues that absent a showing of good cause, CPL 710.30 precludes any use of an unnoticed statement. However, Defendant's protestations to the contrary notwithstanding, this issue has long been settled in this Department: a defendant's statement not noticed under CPL 710.30 may nonetheless be used by the People on cross-examination should Defendant take the stand. For example, in People v. Rigo, 273 AD2d 258, 259 (2d Dept. 2000), the Second Department affirmed defendant's conviction despite the fact that a non-noticed statement of defendant was used during his cross-examination and in the People's rebuttal case. As the Court held,

"The defendant also contends that it was error to permit the People to use his prior statement, to the effect that he knew the police were going to arrest him, on cross-examination and again on rebuttal, where no notice of this statement had been provided pursuant to CPL 710.30. However, the statute does not require that such notice be provided where a statement made by a defendant is used solely for the purpose of impeachment. Since the defendant, on cross- examination, denied that he had ever made any statements regarding his knowledge of the arrest, it was proper for the People to call as a rebuttal witness the officer to whom the statement was made." (Citations omitted).

See also, e.g., People v. LaMour, 189 AD2d 825, 826 (2d Dept. 1993); People v. Rudolph, 134 AD2d 539 (2d Dept. 1987) People v. Foster, 182 AD2d 701 (2d Dept. 1992); People v. Sanzotta, 191 AD2d 1032 (4th Dept. 1993) ("Because the statement was not used as evidence-in-chief, but only on cross-examination to impeach defendant's testimony, a CPL 710.30 notice was not required."); People v. Skinner, 251 AD2d 1013 (4th Dept. 1998) ("[N]o CPL 710.30 notice was required because the statement was used only for impeachment purposes.").

Since the People do not seek to use this statement for purposes other than cross-examination, the Court need not reach the issue of whether the notices actually served by the People satisfy CPL 710.30's prescriptions. Subject to a pretrial voluntariness hearing, this statement will be admissible for that purpose, and Defendant's motion to preclude is denied.

Statements Which the People Intend to Use in Their Case in Chief and For Which the People Claim Notice Was Given.

As mentioned above, the People served and filed two 710.30 notices in this case: (1) The first 710.30 notice, dated May 10, 2004, provided as follows: "Recorded Electronically Oral, reduced to writing Oral made at approximately 12:18 a.m. on or about May 10, 2004 at [*4]Huguenot/Division and at Police Headquarters to Police Officer Lewis. In substance, the defendant stated that he had two beers two hours ago. SEE ATTACHED INTERVIEW FORM." (Emphasis in original) (the "May Notice"). (2) A second notice, filed with a Superceding Misdemeanor Information and dated June 22, 2004 (the "June Notice"), disclosed that an oral statement was made by defendant on May 10, 2004 at 1:15 a.m. that "[i]n substance, the Defendant stated that he had a fight with his girlfriend."

Significantly, the May Notice had annexed to it and, in fact, incorporated by reference, an interview form (the "Interview Form") which reflected the statements allegedly made by defendant at Police Headquarters and the officers to whom they were made, including the statements that he had consumed "2 glasses" of "wine" and that, "I had a fight with my wife". Parenthetically, the Court notes that the May Notice also refers to a videotape which, according to the People, contains a statement the reflection of which is not evident on the Interview Form or otherwise; however, the People have agreed in their papers that such videotaped statement will not be used in their case in chief, but only in cross-examination or in their rebuttal case, and the Court holds that it may only be used for such purposes. See discussion, supra.

Defendant contends that both the May and June Notices are insufficient because they allegedly do not provide the level of detail that CPL 710.30 requires. Defendant's argument boils down to the following: since the Notices do not set forth the actual wording of the alleged statements, the exact time and place they were made or the precise person to whom they were each directed, they fail to pass muster under CPL 710.30. On the other hand, the People contend that 710.30 does not require such a punctilio of precision; they argue that the notices are just thatnotices, not transcripts. As such, they need only provide the essential elements of the statements madenamely, the gist of their context, and sufficiently identify the time, place and participants so that Defendant will be able to assess whether to challenge their admissibility at a pretrial hearing and adequately prepare for such a hearing. In this case, the People claim, Defendant made several similar statements to different officers at different times, but within a short, compressed time period. Under these circumstances, the Notices that provided a summary of his remarks and a time and place range of their making will suffice. The People cite several cases in support of their position.

With respect to these particular statements and Notices, the People have the better of the argument. As the pertinent case law holds, the purpose of CPL 710.30 is not to require the prosecution to furnish a verbation transcript of statements by a defendant to the police; such precision is seldom possible or practicable. Rather, its purpose is to fairly apprise a defendantand his counselof the existence of defendant's statements, a fair summary of what was said, and, in general terms, when, where, and to whom the statements were made so that defendant can evaluate whether to challenge their admissibility in a Huntley or other hearings. The case law supports this view of CPL 710.30. See, e.g. People v. Coleman, 256 AD2d 473, 474 (2d Dept. 1998); People v. Steisi, 257 AD2d 582 (2d Dept. 1999) ("The notice provided by the People adequately apprised the defendant of the sum and substance of the oral statement and a verbation recitation of the statement was not required.").

Indeed, one case cited by defendantPeople v. Figueras, 199 AD2d 409, 410 (2d Dept. 1993)held, on facts somewhat similar to the instant case that a general description of a statement incorporated by reference in an annexed document will satisfy CPL 710.30's [*5]requisites. In Figueras, Defendant objected to the People's introduction at trial of a statement by defendant that was, in fact, part of a more lengthy statement by him, a summary of which had been noticed under CPL 710.30. The Second Department found the notice that had incorporated such shorter statement sufficient, and affirmed defendant's conviction. As the Court held:

"Likewise, we find unpersuasive the defendant's contention regarding the People's alleged failure to provide him with statutory notice of a statement introduced at trial through the testimony of a police detective (see, CPL 710.30). The challenged statement was merely a small part of a lengthy confession, the sum and substance of which the defendant received notice and actually sought to suppress. Given that the challenged statement did not materially augment or differ from the noticed confession, and the defendant received a full and fair opportunity to contest the admissibility of that confession, we discern no CPL 710.30 violation."

See also People v. Morris, 248 AD2d 169, 170 (1st Dept. 1998), aff'd, 93 NY2d 908 (1999). "[T]he statements not specifically included in the People's statement notice were nevertheless admissible pursuant to that notice, because the additional statements were made in the same brief communication to a police officer as the statement set forth in the People's notice and were entirely consistent with the noticed statement."); People v. Coleman, 256 AD2d 473, 474 (2d Dept. 1998); People v. Holmes, 170 AD2d 534, 535 (2nd Dept. 1991).

In the instant case, as in Figueras, Defendant Santa Maria was provided with a notice of statements made by him and to whom they were made more than once, as well as a written documentthe Interview Formthat incorporated such summarized statements. And here as in Figueras, Defendant had ample opportunity to challenge the admissibility of the statements made by him. Accordingly, the statements by Defendant allegedly made on or about the time set forth in the notices are admissible, and Defendant's motion to preclude is denied.

However, there is one statement allegedly made by Defendant for which the supposed notices prove more problematic. The People claim that Defendant's statement to Officer Rivera at 2:19 a.m. while in his holding cellthat he "had a fight with his girlfriend"should be deemed covered by the above 710.30 Notices. Although nearly identical in content to the other alleged statements, this statement was supposedly made to an officer not mentioned, directly or by reference, in the May or June Notices, at a later time, in a different locationthe holding cell rather than the accident scene or interview roomand after Defendant's interview with Officers Sanchez and Lewis as reflected on the Interview Form had concluded. Significantly, neither Officer Rivera nor the holding cell are mentioned in either Notice. In light of these circumstances, it does not appear that Defendant had adequate notice of this statement particularly when, where and to whom it was madeto make a reasonable judgment as to whether its admissibility should be challenged. Accordingly, this statement may not be used by the People on their direct case. To hold otherwise would be inconsistent with the principles articulated above and the purpose, if not the letter, of CPL 710.30. Cf. People v. Coleman, 256 AD2d 473, 474 (2d Dept. 1998) ("[T]o the extent that the CPL 710.30 statement did not include the entire statement, the remaining part of the statement was made to the same police officer during the same conversation, in the same location as the statement identified in the CPL 710.30 [*6]Notice. Therefore, the defendant was given sufficient notice of the statement so as to enable him to timely move to suppress it"); People v. Figueras, 199 AD2d 409 (2d Dept. 1993).

The 911 Calls and Police Interview of Ms. Jiminez.

Defendant also moves to suppress the 911 calls made by the alleged victimwho, the People claim, will not be available at trialas well as her statements to Police Officer Rivera once he arrived at her apartment. For the reasons set forth below, the Court holds that the 911 calls may be introduced at trial but the police interview of her may not.

In Crawford v. Washington, 541 U.S. 36 (2004), the United States Supreme Court held that whether or not an out of court statement by a witness who is unavailable at trial would be deemed trustworthy and reliable under an exception to the hearsay rule, it would nonetheless be inadmissible under the Constitution's Confrontation Clause if it could be considered "testimony". The Court relegated to lower courts the yeoman's task of determining which statements are and are not "testimonial", but did provide some guidance by stating that "[w]hatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations". (Emphasis added)

Courts that have, post - Crawford, examined the admissibility of the content of calls to 911 when the caller is unavailable to testify at trial have reached different conclusions, depending in large part upon the identity and intent of the caller, and the formality of the questioning engaged in by the 911 operator/police officer. The Bronx Supreme Court in People v. Cortes, 4 Misc 3d 575 (Sup. Ct., Bronx Ct. 2004) and the First Department in the recent decision of People v. Coleman, 2005 Slip 02309, N.Y.L.J. March 24, 2005 (1st Dept. 2005) both address the issue in the context of anonymous 911 calls made by a bystander reporting an ongoing activity, and reach opposite conclusions based largely on whether the 911 operator followed a standard, interrogation-like protocol in questioning the caller. When the 911 operator did, the Cortes court held the questioning to be akin to "police interrogation" proscribed under Crawford. When the situation effectively prevented such extensive questioningas in Coleman, where the "caller reportedly emphasized that one or both of the victims were 'bleeding real bad'"the Court held that it did not, and admitted the statements. Similarily, in People v. Moscat, 3 Misc 3d 739 (Crim. Ct., Bronx Cty. 2004) the Bronx Criminal Court in the context of a case alleging domestic violence addressed the issue of the admissibility of a 911 call made by an alleged victim of a crime. The Moscat Court held that since the caller's statement was more of a "cry for help" than a studied response to police interrogation, the call was outside the ambit of Crawford's proscriptions.

Putting aside the tortured analysis that may attend an attempt to divine the intent of the callerthat is, the determination of the issue of whether the 911 caller intended that his or her statement would be used in a future prosecution or at trialthe principle focus in cases such as this should be directed toward the role of the police questioners and the purpose of their questioning. Put simply, in the 911 call context, while an examination of both are necessary, a more fruitful inquiry will be to address the nature of questioning rather than the motive of the caller or the specific answers elicited in assessing whether the exchange should be characterized as "police interrogation" under Crawford.

With these thoughts in mind, it seems to this Court that a principled distinction can be made between the nature and the purpose of police questioning when made in contemporaneous [*7]response to a 911 call placed by an observer reporting a crime as a disinterested witness on the one hand, and an alleged victim calling for help during or hard upon the actual event. In the former situation, the principle focus of the 911 operator/police officer questioning the caller may well be upon the investigative and potential prosecutorial aspect of their duties, and the caller's focus upon reporting his or her observations. Under such circumstances, the questioning would, despite the possibly exigent situation, tend to resemble the studied, more formal police interrogation described as "testimony" by the Crawford Court. This is the gist of the Court's reasoning in Cortes, and distinguished but not contradicted by the First Department in Coleman. Conversely, when a 911 call is made by an alleged victim, the emphasis of the caller and questioner is upon securing and obtaining help as soon as possible, and accordingly, the questioning is generally more rudimentarysuch as, where are you, what happened, are you hurt. Moreover, under these circumstances, the identity of the caller is known so that the caller, who will doubtless be subpoenaed to testify at trial, may be advised of the court date and may come into court, if he or she wished, to explain or contradict any statements made on the 911 tape. Rather than an anonymous report by a mere observer, a victim's 911 call is more likely to be a "cry for help" with respect to conduct that is affecting him or her directly and immediately, and the 911 operator's questioning reflective of that situation.

Applying the above principals to the instant case, it is clear that the 911 calls at issue cannot reasonably be considered "police interrogation" that elicited "testimony" within the meaning of Crawford. As evident from the transcript of the initial 911 call, the alleged victim called because, she stated, "my boyfriend hit me"; she was scared of him, feared he might return and therefore believed that she needed the police. The 911 officer's questions were rudimentary and obviously designed to render immediate assistance in the context of an ongoing situationnot, at that time, to investigate a crime or build a case for a future prosecution: where are you, are you hurt, where is he, and similar types of questionshardly the stuff of the formal, standard type of interrogation that, under recent case law, might be found to run afoul of Crawford. See People v. Cortes, 4 Misc 3d 575 (Bronx Sup. Ct. 2004); cf. People v. Coleman, NYLJ March 24, 2005 (1st Dept. 2005). A transcript of the second 911 callmade by the victim shortly after the first call and when the police did not promptly arrive at her homewere not provided with the motion papers. However, its brief contentthe alleged victim called to ask where the police were since they had failed to appear after her first callas recounted by the People and not contradicted by Defendant in his papers are of the same non-testimonial nature.

Indeed, the factual situation and questioning conducted in the context of the instant case resemble the circumstances that obtained in People v. Moscat, 3 Misc 3d 739, (Crim. Ct., Bronx Co. 2004) in which the Court held that the 911 communication was not "testimonial". In Moscat, defendant was charged with assault in the context of an alleged domestic violence case. He moved in limine for an order excluding as evidence at trial a 911 call made by the complainant. Both sides anticipated that the complainant would refuse to appear at trial. Justice Greenberg analyzed the nature and context of the 911 call and concluded that such a communication was not "testimonial in nature" and therefore admission of it would not violate Crawford.

As the Court held:

"A 911 call for help is essentially different in nature than the "testimonial" materials that Crawford tells us the Confrontation Clause was designed to exclude.

A 911 call is typically initiated not by the police, but by the victim of a crime. It is generated not by the desire of the prosecution or the police to seek evidence against a particular suspect; rather, the 911 call has its genesis in the urgent desire of a citizen to be rescued from immediate peril. Thus, a pretrial examination is clearly "testimonial" in nature in part because it is undertaken by the government in contemplation of pursuing criminal charges against a particular person. But a 911 call is fundamentally different; it is undertaken by a caller who wants protection from immediate danger. A testimonial statement is produced when the government summons a citizen to be a witness; in a 911 call, it is the citizen who summons the government to her aid." Id. At 745.

Here, as in Moscat, there is no indication that Ms. Jiminez' 911 calls were placed for any purpose other than to seek "protection from immediate danger" or that the primary purpose of the police in that context was to provide prompt succor rather than "to seek evidence against a particular suspect". Accordingly, here as in Moscat, admission of the 911 calls would be permissible since they were not "testimonial in nature". See also, e.g., People v. Conyers, 4 Misc 3d 346, 350 (Sup. Ct., Queens Co. 2004) (Holding that a 911 call placed by the mother of the defendant and mother-in-law of the victim while an assault was in progress was not "testimonial" under Crawford, the Court reasoned that "it is clear to this Court, having heard the panicked and terrified screams of Mrs. Conyers, that her intention in placing the 911 calls was to stop the assault in progress and not to consider the legal ramifications of herself as a witness in a future proceeding."); cf. People v. Coleman, supra; People v. Mackey, 5 Misc 3d 709 (Crim. Ct., NY Co. 2004).

Accordingly, with respect to the two 911 calls, the Court finds that the alleged victim's statements contained therein were not "testimonial" in nature within the meaning of Crawford. Defendant's motion to suppress those statements is therefore denied, and they may be received into evidence at trial provided that the requirements of an "excited rutterance " or other exception to the hearsay rule are met, and that the People make the appropriate preliminary evidentiary showing at trial. See People v. Moscat, 3 Misc 3d at 747.

The People also seek to admit, as an excited utterance exception to the hearsay rule, the statements made by the alleged victim to Police Officer Rivera who arrived at her apartment in response to her 911 calls. Putting aside the issue of whether such statements would qualify as an excited utterance or be subsumed under some other exception to the hearsay rulea demonstration of which would be, for the People, problematic at bestthe Court holds that such statements do not withstand Crawford scrutiny. Once Officer Rivera arrived on the scene and ascertained that Defendant was not in the alleged victim's apartment, the sense of imminent danger passed and the nature of the encounter and the questioningparticularly from the perspective of the police officerschanged. Having successfully completed his initial function[*8]to render emergency assistance and secure the alleged victim and her surroundingsthe officer's focus turned to investigating whether a crime had been committed and, if so, gathering evidence of it on which to ultimately base an arrest and prosecution. Questioning in such a content is akin to the proscribed "police interrogation" in Crawford and is therefore inadmissible. Accordingly, Defendant's motion to suppress the alleged victim's statements to Officer Rivera while in her apartment is granted.

CONCLUSION

The foregoing constitutes the Decision and Order of this Court. The parties are directed to appear on April 27, 2005 at 9:30 a.m. for purposes of scheduling a trial date.

DATED: White Plains, New York

April 25, 2005

John P. Colangelo

Acting Judge

Westchester County Court