People v Feola

[*1] People v Feola 2005 NY Slip Op 51264(U) Decided on August 10, 2005 Supreme Court, Kings County Collini, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 10, 2005
Supreme Court, Kings County

PEOPLE OF THE STATE OF NEW YORK, Plaintiff,

against

JAMES FEOLA, GREGORY HEPP and FRANCIS SANZONE, Defendants.



2072/2004



Attorney for the People:

Charles J. Hynes

District Attorney, Kings County

350 Jay Street

Brooklyn, NY 11201

by ADA Charles Guria

ADA Richard Farrell

Attorney for the defendant Feola:

Stephen C Worth, Esq.

111 John Street, Suite 640

New York, New York 10038 Attorney for the defendant Hepp:

John D Patten, Esq.

30 Vesey Street, PH Suite

New York, New York 10038

Attorney for the defendant Sanzone:

Paul Martin, Esq.

65 Broadway, Suite 508

New York, New York 10006

Robert J. Collini, J.

Prior to the completion of jury selection, the defendants moved for preclusion of certain statements made by defendant Feola to an assistant district attorney prior to his arrest.[FN1] Upon completion of the trial, and after the rendering of the jury's verdict [FN2], defendant Feola now moves to set aside the verdict, pursuant to CPL 330.30 (1), arguing that the admission of these contested statements requires reversal of the judgment as a matter of law.[FN3] The People opposed the defendants' motion made during trial and oppose counsel's subsequent motion, claiming the statements in dispute were not subject to the notice provision of CPL 710.30 (1)(a).

Findings of Fact

Defendants, police officers James Feola, Gregory Hepp and Francis Sanzone, were charged with assault in the second and third degree. [*2]Officers Feola and Hepp are also charged with making a punishable false written statement (PL 210.45). All charges resulted from the arrest of a motorist, Boris Nkari, on March 8, 2004.[FN4] During the course of the arrest, Mr. Nkari received minor injuries.

Assistant District Attorney Shamuil, who was assigned to prosecute Mr.Nkari, contacted the defendants Feola and Hepp in an attempt to ask each of them routine questions about the incident that resulted in Mr. Nkari's arrest. Only the arresting officer, defendant Feola, spoke with ADA Shamuil about what led to the arrest of Mr. Nkari. ADA Shamuil incorporated defendant Feola's statements into a criminal court complaint, which formerly charged Mr. Nkari with various offenses. Both defendants subsequently filed corroborating affidavits swearing to the truth of the contents of the criminal court complaint.[FN5]

After an investigation, the Kings County District Attorney dismissed the criminal charges against Mr. Nkari and indicted all three defendants with assault and indicted defendants Feola and Hepp with falsely swearing to the truth of the original criminal court complaint.

The case against all three defendants was sent to this court for trial.[FN6]

Prior to the completion of jury selection, the defendants made a motion to preclude the People from introducing into evidence at trial statements made during the course of a March 30, 2004, telephone conversation between the defendant Feola and Assistant District Attorney Shamuil. The People sought to introduce such statements in order to prove the elements of the charge that defendants Feola and Hepp made a punishable false written statement when each signed the corroborating affidavit swearing to the truth of the contents of the original criminal court complaint. Although defendant Feola conceded he voluntarily made the statements alleged by [*3]ADA Shamuil, he nevertheless moved to preclude such statements because the People did not provide the defense with statutory notice of their intent to use such statements at trial.[FN7]

Although the People provided the defendants with statutory notice of other statements that they had intended to introduce at trial, that notice did not include the telephone conversation at issue herein. The defendants contend that since the People did not provide statutory notice, these statements must be precluded.

Conclusions of Law

Pursuant to CPL 710.30 (3), the defendants moved to preclude the contents of certain telephone conversations that were made between defendant Faola and ADA Shamuil, contending the People failed to give notice of their intention to offer the statements as evidence at trial.[FN8]

CPL 710.30 (1) sets forth the notice requirement for the People's intended use of a defendant's statement at trial:

Whenever the People intend to offer at a trial (a) evidence of a statement made by a defendant to a public servant, which statement if involuntarily made would render the evidence thereof suppressible upon motion pursuant to subdivision three of §710.20 . . . they must serve upon the defendant a notice of such intention specifying the evidence intended to be offered.[*4]

(CPL 710.30 [1] [emphasis added]).

Pursuant to CPL 710.20 (3): Upon motion of a defendant who (a) is aggrieved by unlawful or improper acquisition of evidence and has reasonable cause to believe that such may be offered against him in a criminal action ... a court may ... order that such evidence be suppressed or excluded upon the ground that it: ... Consists of ... potential testimony reciting or describing a statement of such defendant involuntarily made, within the meaning of section 60.45.

(CPL 710.20)(emphasis added).

The People concede they did not serve notice. They contend, however, that since the disputed statements were voluntarily made, formal notice of their intended use at trial is not required.[FN9] The defendants concede the subject statements were made voluntarily, but contend the notice statute still requires their preclusion.[FN10]

"Analysis begins by restating that CPL 710.30 is a notice statute intended to facilitate a defendant's opportunity to challenge before trial the voluntariness of statements made by him and the reliability of his identification by others" (People v Lopez, 84 NY2d 425, 428 [citations omitted]).

"The controlling principle in interpreting statutes is the legislative intent ... Obviously, evidence of it is first sought in the words the Legislature has used ... But we may not stop there; the spirit and purpose of the act and the objects to be accomplished must also be considered' [*5](People v White, 73 NY2d 468, 473-474, cert denied 493 US 859 [citations omitted]).

The history of New York criminal practice sheds some light onto the legislative intent of CPL 710.30. In 1974, the legislature passed the Omnibus Pretrial Motion Bill of 1974 (L 1974, ch 763, §1). Its purpose was to "promote the overall administration of justice in terms of efficiency, consistency, economy and speedier disposition" (Preiser, Practice Commentary, McKinney's Cons Law of NY, Book 11A, CPL 255.10, at 143). The legislature mandated that criminal defendants file their omnibus motions within forty-five days after arraignment (CPL 255.20). In accordance with the legislative desire to promote judicial efficiency, CPL 710.30 (1)(a) requires the People to give formal notification, within fifteen days of arraignment, of any out-of-court statements made by a defendant to law enforcement personnel.[FN11]

In explaining the statute's legislative history, the New York Court of Appeals noted that: CPL 710.30, insofar as it concerns confessions or admissions by a defendant, finds its origins in Jackson v Denno (378 US 368), in which the United States Supreme Court held that such statements may not be considered by the jury which is to adjudicate guilt or innocence unless there has first been a determination by a separate fact finder, following an evidentiary hearing, that such statements were made voluntarily.

(People v O'Doherty, 70 NY2d 479, 484).

The Court of Appeals further explained that the purpose of the notice requirement is to give the defendant "an adequate opportunity to challenge the voluntariness" of any statement to be offered as evidence against him prior to the commencement of trial (O'Doherty, 70 NY2d at 477). The appropriate focus, as the Court of Appeals has repeatedly stressed, is on the link between notice and the voluntariness of the statement (see People v Greer, 42 NY2d 170 [purpose of notice requirement is to give defendant time to prepare his case with respect to the voluntariness of any confession or admission]; see also People v Briggs, 38 NY2d 319; People [*6]v Ross, 21 NY2d 258).

The defendant may challenge the statement upon three grounds: that it was (1) elicited by threat of physical force or other improper conduct or undue pressure; (2) induced by a promise or statement made to defendant which created a substantial risk of false self-incrimination; or (3) obtained in violation of defendant's constitutional rights (see, CPL 60.45 [2]).

(People v Rodney, 85 NY2d 289, 292).

In the present case, no argument can be made that the defendant Feola required notice of his telephone conversations with ADA Shamuil in order to give his attorney an adequate opportunity to challenge the voluntariness of those statements. Pursuant to CPL 60.45 (2), defendant Feola had no basis to seek suppression of his statements since they were not made under threat of physical force, nor by any other improper conduct that pressured him to make such statements, they were not induced by a promise which created a risk of self-incrimination, nor were they obtained in violation of his constitutional rights.[FN12] Since the defense has no basis to seek the suppression of such statements, no recognized purpose would be served in providing notice of these statements prior to trial.[FN13] Thus, if this court were to grant defendant's motion to preclude these statements predicated solely upon the prosecutor's failure to provide notice, such a decision would be adverse to the "spirit and purpose" of the legislative intent of the notice statute (White, 73 NY2d at 473-474). The undebatable, indisputable and incontestible spontaneous and voluntary nature of defendant Feola's statements would not be suppressible under any plausible legal theory. [*7]

In People v Chase (85 NY2d 493), however, the Court of Appeals reversed a conviction based on the prosecutor's failure to provide statutory notice of one of four incriminating statements made by the defendant while in police custody.[FN14] The People claimed notice was not required because the statement was clearly voluntary. The Court ruled: It is for the court and not the parties to determine whether a statement is truly voluntary or is one in which the actions of the police are the functional equivalent of interrogation causing the statement to be made ... In People v Greer (42 NY2d 170), we noted that CPL 710.30 (1) (a) notice need not be served on a defendant where "there is no question of voluntariness" (id., at 178). In that case even though this Court found that the statement was completely voluntary ... it precluded the statement for failure of the People to give the required notice. Since the statement here was made to a law enforcement official and the defendant had the right to have a court review the circumstances under which the statement was given and to determine whether it was truly spontaneous or the functional equivalent of interrogation ... defendant was entitled to notice under CPL 710.30 (1) (a).

(id., at 500) (citations omitted).[FN15]

While the Court of Appeals decision in Chase required statutory notice be provided whenever the defense could argue that the disputed statements were involuntarily made, the decision can be distinguished from the issue before this court. The defendant in Chase made the disputed statement while sitting in a patrol car, prior to the issuing and waiver of [*8]Miranda warnings, a situation where one can easily argue that the defendant was in police custody. In Chase, only the prosecution stated that there was no question as to the voluntariness of the defendant's initial statements. The defendant contested those statements as being involuntarily made while in police custody prior to the reading and waiver of Miranda warnings, certainly a plausible argument under the circumstances. In the decision before this court, both parties concede that there is no issue as to the voluntariness of the defendant Feola's statements. Thus this court is not required to make the factual determination that the court in Chase ruled was the sole province of the court.

In addition, in Chase, the defendant's request for pre-trial discovery of all of her statements had not been provided by the People. No such issue was raised before this court. Finally, the defendant in Chase did not have actual knowledge of the disputed statement prior to trial.

In contrast, the defense herein had actual notice of the contents of defendant Feola's statements as a result of the pre-trial discovery [FN16](see White, 73 NY2d at 474 [statute not implicated when defendant has actual notice of statement evidence introduced at prior trial][FN17]; People v Michel, 56 NY2d 1014 [notice not required where counsel was active participant at the time the evidence was acquired].[FN18] The defense raised the issue of Feola's disputed statements prior to the completion of jury selection. The defense does not contend that it was surprised or prejudiced by the lack of notice in this case.

As has been previously noted, had the People given notice in [*9]compliance with the statute, the defendants concede they would not have any grounds to challenge the voluntariness of those statements. Thus the prosecution's failure to give statutory notice had no meritorious or qualitative effect on the evidence that was actually presented to the jury.

When the underlying purpose of CPL 710.30 cannot be effectuated, some courts have dispensed with the statutory notice and hearing requirements (see People v DeJesus, - AD3d - , 797 NYS2d 297 [hearing and notice requirements are inapplicable where challenged identification procedure is merely confirmatory]; People v Jones, 236 AD2d 217, 219, lv denied 89 NY2d 1036 [defendant's grand jury testimony is exempt from notice requirement since testimony was clearly voluntary]).

In the present case, the evidentiary hearing would serve no purpose, since the voluntariness of the subject statement is not in dispute, the defendant had actual notice of the statement and, therefore, the underlying spirit of the statute could not be effectuated by precluding the use of the disputed statement.

Under the statute, for "good cause shown", the court may permit the People to serve the notice of their intention to offer a statement of the defendant after the 15-day period. In such case, the court must accord the defendant reasonable opportunity thereafter to make a suppression motion (CPL 710.30 [2]). The requirement of good cause is to be strictly construed and is satisfied only upon a demonstration of unusual circumstances (People v Showers, 200 AD2d 864, 865). Good cause cannot be established by office failure (People v Briggs, 38 NY2d 319, 321; People v Miller, 142 AD2d 760, 762), mere neglect or prosecution confusion (People v Boughton, 70 NY2d 854, 855; People v Hines, 200 AD2d 634, 635, lv denied 83 NY2d 872), or the absence of prejudice to the defendant (People v McMullin, 70 NY2d 855, 856-857; O'Doherty, 70 NY2d at 486-487; People v Moore, 178 Misc2d 163, 164-165).

"There may be instances where, given the time, place and context of the defendant's statement . . . the untimely disclosure of the statement to the prosecutor would present 'unusual circumstances' to which the good cause requirement is addressed" (O'Doherty, 70 NY2d at 486). When the defendants have actual notice of the People's intent to introduce statements at trial, courts have held that "good cause" exists for dispensing the statutory notice requirement (see Michel, 56 NY2d at 1015 [since defense had actual notice of prosecution's intent to introduce confession at trial, People had good cause for dispensing with the statutory notice [*10]requirement]; People v Costello, 101 AD2d 244, 249 [since defendant's attorneys heard the tapes before trial and had actual notice of their intended use, good cause vitiates need for formal notice]).

Even if this Court were to find that the disputed statements were subject to the notice requirement of CPL 710.30, an examination of the underlying facts reveals that the People had "good cause" for their untimely disclosure since the defendants had actual notice of the context of the statements.[FN19] In addition, the People's belief that such statements were not required to be disclosed, is entirely reasonable.[FN20] At the time the statements were made, the defendant Feola was not a suspect, nor was he in custody. Defendant Feola was a police officer, acting as a law enforcement agent, giving what appeared to be a routine statement to another law enforcement official. Unlike the vast majority of cases in which the preclusion statute comes under judicial review, the defendant in this case was not in custody, was not being interrogated and was not being asked to make a self-incriminating statement. Thus, under the unique set of facts in this case, the procedural safeguards of the notice statute would not serve any legitimate purpose because the statements at issue were truly voluntarily and the defendant had actual knowledge of the contents of such statements prior to trial.[FN21]

In addition to the foregoing, the most compelling argument in favor of admitting the disputed statements without notice to the defense is that they were part of the res gestae.[FN22] Res gestae has been described as "declarations accompanying and elucidating the criminal transaction" [*11](People v Fox, 178 Misc2d 1018, 1026). In the most common situations that have been litigated, a declarant makes inculpatory statements to an undercover officer [FN23] or to a confidential informant [FN24] during the course of the criminal transaction. At trial, the People present these statements as part of their evidence-in-chief against the accused. The courts have universally admitted such statements into evidence, regardless of the lack of CPL 710.30 (1)(a) notice (see People v Garcia-Lopez, 308 AD2d 366, lv denied 1 NY3d 572, cert denied 541 US 1078; People v Donovan B., 278 AD2d 95, lv denied 96 NY2d 709; People v Fisher, 266 AD2d 308, lv denied 94 NY2d 880; People v Copes, 200 AD2d 680, lv denied 85 NY2d 861; People v Kimbell, 169 AD2d 880; People v Stewart, 160 AD2d 966; Fox, 178 Misc2d at 1026; People v Kleiner, 170 Misc2d 850; People v Ziskin, 158 Misc2d 447; People v Bostic, 97 Misc2d 1039).

"When there is no question as to the voluntariness of a defendant's statements to a public servant, as in the case of res gestae statements, notice to the defendant of the intention to offer such statements into evidence is not required" (People v Wells, 133 AD2d 385, 386, lv denied 70 NY2d 939).

In reviewing the totality of the facts and circumstances in this case, it is inescapably apparent to this court that the statements made by defendant Feola to ADA Shamuil were an integral part of the criminal transaction that is the subject of the underlying conviction.[FN25] Since such statements are part of the res gestae of the underlying criminal transaction, the defendant is not entitled to statutory notice. [*12]

Not only is the defendant not entitled to notice of these statements under CPL 710.30 (1)(a), he does not even have the right to discovery of these statements since CPL 240.20 (1)(a) specifically limits a defendant's statutory right to discovery to statements "other than [those made] in the course of the criminal transaction" (Wells, 133 AD2d at 386).

Accordingly, for the reasons set forth herein, defendants' motion, to preclude the admission at trial of defendant Feola's telephone conversation with ADA Shamuil, is denied.[FN26] In addition, defendant Feola's motion to set aside the verdict, as a matter of law, on the basis of the admission of these disputed statements is also denied.[FN27]

This constitutes the decision, opinion and order of the court.

________________________

JSC

Dated: August 10, 2005

Brooklyn, New York Footnotes

Footnote 1:Defendant Francis Sanzone was acquitted of all charges.

Footnote 2:The jury convicted the defendants James Feola and Gregory Hepp of Making a Punishable False Written Statement (PL 210.45) but acquitted each defendant of all the assault counts.

Footnote 3:Defendant Feola also moves for a trial order of dismissal, pursuant to CPL 290.10 (1). This decision does not address that issue.

Footnote 4:A fourth officer, Karl Richards, was also present and assisted in Mr.Nkari's arrest but was not charged.

Footnote 5:These affidavits form the basis of the charge of making a punishable false written statement (PL 210.45). This decision does not address the legal sufficiency of the evidence presented in support of this charge.

Footnote 6:The jury acquitted the three defendants of both assault charges. The defendants Feola and Hepp were convicted, however, of making a punishable false written statement with respect to the initial criminal court complaint that charged Mr. Nkari with various offenses.

Footnote 7:The defense maintained that although such statements were voluntarily made, their use at trial would be extremely prejudicial, given the lack of other evidence to support the misdemeanor charge. The court concurs that these statements were a critical component to the People's case, without which they would not have survived defendant's motion for a trial order of dismissal (CPL 290.10). Since the statements of defendant Feola could not be used against defendant Hepp, the evidence that was presented as to Hepp was not legally sufficient to establish the offense charged, nor any lesser included offense, and defendant Hepp's motion for a trial order of dismissal, which was reserved pending the verdict, will be granted on the date of sentencing and the charge will be dismissed (CPL 290.10) .

Footnote 8:Although all three defendants joined in the motion at trial, only defendant Feola has standing to raise this claim.

Footnote 9:The People also contend the statements made by Officer Feola were part of the res gestae of the criminal transaction and are, therefor, exempt from the notice requirement. While this court initially dismissed this argument, upon further review, these statements are part of the res gestae, as will be discussed herein.

Footnote 10: In his memorandum of law in support of his motion to set aside the verdict and vacate judgment, counsel for the defendant Feola attempts to minimize his earlier concession that his client's statements were voluntarily made. However, counsel failed to present any legal basis for this court to determine that his client's telephone conversation with ADA Shamuil could be ruled anything but voluntarily made.

Footnote 11:CPL 710.30 (1)(b) similarly requires notification of any out-of-court identification procedure.

Footnote 12:In his argument before this court and in his moving papers submitted after trial, defendant Feola does not set forth any grounds for suppression pursuant to CPL 60.45(2).

Footnote 13:Understandably, the defense would benefit from knowing, in advance, the evidence that the People intend to introduce at trial, but this isn't the stated reason for the notice statute. Notice is required only to provide counsel with an opportunity to challenge the voluntariness of the statement.

Footnote 14:The first statement was made in the patrol car prior to the defendant being transported to the police precinct. The subsequent statements were all made at the precinct after Miranda warnings had been given and waived.

Footnote 15:Whether Chase is the final word on this subject is open to debate. In People v Richard (229 AD2d 787, lv denied 89 NY2d 928), the Third Department, citing Chase, stated, in dictum, that since the defendant's statement was "truly spontaneous and, therefore, voluntary", it was exempt from the notice requirement of CPL710.30. In addition, in People v Rodney (85 NY2d 289, 292-293), the Court of Appeals held that routine booking questions are exempt from CPL 710.30 notice requirements because the answers to such questions fall within the pedigree exception to the notice requirement.

Footnote 16:That the defense had actual notice of the contents of the statements made by defendant Feola to ADA Shamuil is clearly demonstrated by the fact that the defendants themselves brought these statements to the court's attention prior to the completion of jury selection.

Footnote 17:White, however, was decided prior to Chase and involved a statement that had been admitted at the defendant's prior trial. Despite the distinction with the pending case, the argument remains the same: if the defendant has actual knowledge of the contents of a statement and cannot legally challenge its introduction into evidence at trial, why should the People be required to provide notice of such statement under a statute that is designed to give the defense a limited opportunity to challenge the voluntariness of that statement?

Footnote 18:Michel was also decided prior to Chase and involved a statement that had been submitted to the prosecutor by the defendant with the assistance of his attorney which stated on the face of the document that it could be used at trial as evidence.

Footnote 19:The statements also constitute good cause, excluding the notice requirement, because they constituted part of the res gestae of the crime charged.

Footnote 20:By way of contrast, precluding the introduction of such statements because the People didn't inform the defense of statements that the defendant has no legal basis to challenge, strikes this court as being highly unreasonable.

Footnote 21:The court is aware that during oral arguments I found that the People did not establish good cause to justify their non-disclosure of the disputed statements. Nevertheless, that finding was not the determinative factor in my ultimate decision to admit the statement evidence despite the lack of statutory notice.

Footnote 22:During legal arguments at trial, I dismissed the People's contention that these statements constituted res gestae and were admissible without notice. Upon further reflection and an in depth review of the relevant case-law, this argument becomes compelling.

Footnote 23:People v Garcia-Lopez, 308 AD2d 366, lv denied 1 NY3d 572, cert denied 541 US 1078; People v Kimbell, 169 AD2d 880; People v Wells, 133 AD2d 385, lv denied 70 NY2d 939.

Footnote 24:People v Copes, 200 AD2d 680, lv denied 85 NY2d 861.

Footnote 25:Defendant Feola's statements to ADA Shamuil, that he would read over the criminal court complaint and fax back a signed affidavit corroborating the truth of that complaint, was the beginning of the criminal transaction for which the defendant was ultimately convicted. As stated earlier, these disputed statements were a crucial component of the People's direct case. As a means of comparison, in a robbery case, the robber's statement to the victim to "give up the money" is also part of the res gestae of the underlying criminal transaction. The robbery may not be complete until the money is turned over, but the robber's statement is part of the criminal transaction that compels the victim to turn over the money and that statement, voluntarily made by the robber, does not require disclosure under CPL 710.30 (1)(a).

Footnote 26:This decision supplements the oral decision rendered by the court at trial.

Footnote 27:If this court had the power to set aside the verdict as against the weight of the evidence, or in the interest of justice, it would exercise that authority with respect to defendant Feola. Unfortunately for defendant Feola, the court's power to set aside a verdict is limited to certain statutory parameters set forth in CPL 330.30. Apart from the limited authority given to this court by the legislature, it is beyond my power to act in the interest of justice or to substitute my opinion as to the weight of the evidence for that rendered by the jury.