People v Falkoff

[*1] People v Falkoff 2006 NY Slip Op 50846(U) Decided on May 11, 2006 Supreme Court, Kings County Goldberg, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 11, 2006
Supreme Court, Kings County

The People of the State of New York, Plaintiff,

against

Nicholas Falkoff, Defendant.



0804/05

Joel M. Goldberg, J.

By a motion dated April 7, 2006, the defendant moved pursuant to CPL 710.30(3) to preclude the People from introducing on their direct case at trial a written statement of the defendant made to the police on the ground that the People did not comply with the requirements of CPL 710.30(1)(a) in that the notice provided to the defendant stated that the statement occurred three hours earlier than the time the People now claim. The People opposed this motion in an answer dated April 21, 2006. This Court heard oral arguments on the merits of the motion on April 21, 2006. This decision and order embodies those arguments and the oral decision by the Court rendered from the bench on May 1, 2006 denying the motion.

BACKGROUND

The defendant was arrested on January 29, 2005 at approximately 5:45 a.m. after an on the street point-out identification. He was arraigned in Criminal Court on a felony complaint for crimes arising out of his allegedly forcing the complaining witness at 5:35 a.m., just ten minutes before his arrest, to place her mouth on his penis and forcibly inserting his hand into her anus and vagina. At his Criminal Court arraignment, the People served notice of this identification pursuant to CPL 710.30(1)(b), and notice of a statement pursuant to CPL 710.30(1)(a). The notice set forth the date and time of the statement: "01/29/05 06:22"; the place: "90 Precinct"; "Manuel Munoz" as the police officer to whom the statement was made, and a brief summary of the statement in quotation marks and referenced an attached copy of the two-page written statement signed by the defendant. In the written statement the defendant claimed he believed the complaining witness was a consenting participant and, although he did not detail what transpired, the defendant said he hoped she would forgive him for misinterpreting the situation.

The defendant was subsequently indicted. At the Supreme Court arraignment on April 4, 2005, the People again served a CPL 710.30(1)(a) notice. This notice again specified that the defendant made a written statement to Police Officer Manuel Munoz on 1/29/05 at 6:22 a.m. at the 90th precinct. Attached was the same written statement served in Criminal Court. The notice also stated that the defendant made an oral statement "at the time of his arrest" consisting of "pedigree information."

In addition, the People again served notice pursuant to CPL 710.30(1)(b) stating that the defendant was identified at 5:45 a.m., but this notice omitted the name of the identifying witness. No issue has been raised concerning this omission. The People also served a Voluntary Disclosure form stating that the time of the crime was "approximately 5 a.m." which was 35 [*2]minutes earlier than the time specified in the felony complaint.

Rather than making discovery motions, the parties consented to the People providing "Open File Discovery." At some point in the pre-trial discovery process, the People served on defense counsel a copy of the memo book entries of Police Officer Munoz which stated that the defendant was read his Miranda warnings at 7:15 a.m. The memo book also stated that at 9:20 a.m. the defendant was "debriefed by 90 Squad Det. Amato, P.D.U., Miranda rights re-read and acknowledged. Deft. made statement (written)."

A pre-trial Huntley hearing was requested and ordered based on the CPL 710.30(1)(a) notice and scheduled to commence on March 20, 2006. On March 20, 2006, prior to the commencement of the Huntley hearing, the People stated to the Court and counsel that the time in the CPL 710.30(1)(a) notice was incorrect and that the actual time of the written statement was 9:20 a.m.

Accordingly, the defendant made this motion, pursuant to CPL 710.30(3), for preclusion of the use of the statement by the People on their direct case.

THE DEFENDANT'S POSITION

The defense contends that the three-hour discrepancy between the time of the statement to Police Officer Munoz set forth in the CPL 710.30(1)(a) notice, which was 6:22 a.m., and the time the People now claim the statement was made, which is 9:20 a.m., requires that the statement be precluded. Based on case law interpreting CPL 710.30(3), the defense argues that this discrepancy, which the defense claims was exacerbated by the People's disclosure of the police memo book entry that the defendant was given Miranda warnings by Police Officer Munoz at 7:15 a.m. (which may or may not be true), amounted to "the absence of service of notice" requiring preclusion pursuant to CPL 710.30(3).

The defense claims that the memo book entry by Police Officer Munoz stating that he did not give Miranda rights until 7:15 a.m. led counsel to believe that the written statement attached to the CPL 710.30(1)(a) notice was made prior to Police Officer Munoz giving the defendant Miranda warnings, and that it was the defendant's legal strategy to suppress the statement based on this memo book entry. The defense also claims that although Police Officer Munoz's memo book shows that the defendant was de-briefed and made a written statement after being re-read his Miranda rights at 9:20 a.m., the defendant believed this 9:20 a.m. statement was not going to be used by the People, because the CPL 710.30(1)(a) notice only referred to a written statement made to Police Officer Munoz at 6:22 a.m.

THE PEOPLE'S POSITION

The People offer no explanation for the time discrepancy and do not attempt to argue that there is "good cause" to excuse the error in the notice. See CPL 710.30(2). Although now asserting that the defendant made the written statement at 9:20 a.m., the People offer no clarification as to whether this statement was made to Police Officer Munoz, as stated in the CPL 710.30(1)(a) notice, or to "Det. Amato" when being "debriefed" as stated in Police Officer Munoz's memo book. Ignoring the defense arguments concerning the purported defense reliance placed on the memo book entry stating the time the Miranda rights were given, the People contend that because the defendant was given notice of the exact statement, the three-hour time discrepancy does not justify preclusion.

Although the People have offered no explanation for the error in the CPL 710.30(1)(a) [*3]notice and no explanation as to why this error remained uncorrected from January 2005 to March 2006, no claim is being made either that the defense was being deliberately misled or that the People learned of the mistake before the date scheduled for the hearing. Instead, it appears that for over a year the People did not look closely into the facts of the case and examine their own file until shortly before the scheduled hearing.

DISCUSSION

Central to the defense argument that the error in the CPL 710.30(1)(a) notice warrants preclusion is the claim that the error, when combined with the memo book entry, misled defense counsel in his investigation of the circumstances of the statement and frustrated the legal strategy he planned to employ at the suppression hearing.

The defense argument for preclusion is based on a rationale, found in a 31 year-old Court of Appeals case, stating that the purposes of the CPL 710.30(1)(a) pre-trial notice requirement are: (1) to avoid mid-trial delays and suppression hearings and (2) to allow defense counsel the opportunity to investigate the circumstances of the statement prior to trial and prepare a defense. People v. Briggs, 38 NY2d 319, 322-323(1975). See also People v. O'Doherty, 70 NY2d 479, 488-489 (1987); Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 710.30 (1995) at 219.

Although information in the CPL 710.30 notice may facilitate defense investigation and pre-trial preparation, the Court of Appeals has more recently stated in People v. Lopez, 84 NY2d 425,428 (1994), 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. Acknowledging that information in the CPL 710.30 notice might overlap with the information later provided in discovery, the purpose of the CPL 710.30 notice, according to Lopez at 429, is to enable the defense to prepare a suppression motion and not necessarily to facilitate investigation and preparation of defense strategy. Lopez noted that these differing purposes are exemplified by the Legislature's establishing a 15-day timetable to serve the CPL 710.30 notice compared to the respective 30-day and 45-day timetables for discovery demands, pursuant to CPL 240.80(1), and omnibus motions, pursuant to CPL 255.20(1).

Thus, Lopez must be read to modify the earlier statement made by the Court of Appeals in Briggs at 322-323 that a primary purpose of the CPL 710.30 notice is to enable the defense to investigate and prepare a defense. In this regard, Lopez held, at 428, that a CPL 710.30(1)(a) notice is sufficient if it specifies the evidence intended to be offered and contains the time, place, and manner of the statement and the sum and substance of the statement. There is no requirement that the statement notice also contain additional information that would be relevant to the defense such as the exact contents of the statement, if and when Miranda rights were given, whether the defendant requested to speak to an attorney, or who was present when the statement was made. This type of information may be obtained through discovery prior to the suppression hearing or trial and would not be needed to bring a motion to suppress a statement, because a motion to suppress a statement need only state a "legal ground" but need not contain sworn allegations of fact. CPL 710.60 (3) and 710.20(3).

The defense by letter, dated May 8, 2006, submitted to this Court's attention the case of People v. Cox, 161 Misc 2d 1011(Supreme Court, Queens County 1994), in which preclusion of [*4]an identification was granted. In Cox, the notice submitted pursuant to CPL 710.30(1)(b) did not specify the number of witnesses who made the identification. To that extent, the decision in Cox foretold the standard later set forth in Lopez. The Court in Cox also found that this deficiency may have impaired the defendant's ability to prepare an appropriate defense. As noted, Cox was decided prior to the Court of Appeals decision in Lopez in which it was explicitly stated that the purpose of the CPL 710.30 notice is to facilitate a timely suppression motion, not to provide pre-trial discovery to enable formulation of a defense strategy. Therefore, to the extent that the preclusion order in Cox was based on an incomplete notice impairing the defense of the case rather than impairing the making of an appropriate suppression motion, the rationale of Cox should not be followed.

The Court in Cox, at 1016, cited a pre-Lopez decision I made while sitting in the New York City Criminal Court, Richmond County, which also foretold the Lopez standard and granted a motion to preclude identification testimony, because the CPL 710.30(1)(b) notice did not specify either the number or the identities of the witnesses. People v. Costanzo, NYLJ, June 12, 1992, p.21, col.5. In Costanzo, I referred to the language in People v. Briggs at 323, stating that the purpose of the notice is to give the defense an opportunity to investigate and prepare its case. However, just as in Cox, in view of the later decision in Lopez, the Briggs rationale stated in Costanzo is no longer a proper measure of the sufficiency of a CPL 710.30 notice.

In this case, the notice on its face was sufficient for the defendant to make a motion to suppress the statement. The defendant was given a photocopy of the written statement in issue, so there was no ambiguity as to the nature of the statement. The notice also stated that the written statement was made at the 90th Precinct and to whom it was made. Even after receiving a copy of the memo book, which made reference to a "Det. Amato," the defendant never brought discovery motions seeking to clarify the time of the statement, when Miranda rights were given, or to whom the statement was made.

Upon analysis, this case represents a failure in the discovery process to clarify the time of the statement rather than a failure of the notice to provide sufficient information. Although Officer Munoz's memo book stated that Miranda rights were given at 7:15 a.m. and the defense claims to have relied on this memo book entry as a "defense strategy" to prepare for the suppression hearing, there was no assertion by the People that this entry was truthful or accurate and, indeed, it may turn out not to be accurate. The defense could have filed a request for a Bill of Particulars, pursuant to CPL 200.95, to obtain a more formal representation of when the defendant was advised of his Miranda rights. Such a motion would have clarified the ambiguities raised in the memo book and have enabled the defense to formulate a strategy with more certainty prior to the hearing.

In contrast, if the People had turned over inaccurate, incomplete or misleading discovery information, such failures would not call for the drastic remedy of total preclusion of evidence if other remedies such as a continuance would be sufficient to cure the prejudice. CPL 240.70(1); People v. Kelly, 62 NY2d 516, 521-522 (1984).

Cases subsequent to Lopez, similar to this case, where the CPL710.30 notice contained factual errors as to particular details have not found the respective errors so significant as to have warranted preclusion.

In People v. Jameson, NYLJ, June 10, 1997, p. 26 col 3, (Supreme Court, NY County), the time of the statement was one hour later than the time specified in the CPL 710.30(1)(a) [*5]notice. The Court stated that where substantive errors in a CPL 710.30(1)(a) notice are so egregious that they hamper a defendant's investigation and formulation of legal strategy, preclusion is the only appropriate remedy. However, minor errors which do not impair a defendant's ability to engage intelligently in motion practice do not require preclusion. Therefore, the Court denied preclusion because the notice on its face was sufficient for the defendant to identify the statement and litigate its admissibility.

As noted, in this case it is not the three-hour discrepancy that the defendant claims caused the prejudice. Rather, it is the defendant's "strategic" reliance on an extraneous memo book entry provided in discovery concerning the time Miranda rights were given, even though the defendant chose not to verify the stated time in that memo book entry with a request for a Bill of Particulars. Further, there is no claim that the defendant's ability to "investigate" the statement was impaired by the memo book entry, only that his "strategy" has been affected by the three-hour discrepancy.

As stated in People v. Centeno, 168 Misc 2d 172, 177 (Supreme Court, NY County 1995), revd on other grounds, 259 AD2d 277 (1st Dept. 1999), "[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 that the People actually seek to utilize that the errors [in the notice] cannot be corrected by amendment." In this case, the defendant was provided in the notice with an actual copy of his own written statement. Because the defendant does not claim he wrote more than one statement, the defense was in an adequate position to bring a motion to suppress that statement despite the incorrect time in the notice and despite the memo book entry which the defense chose not to further explore by a request for a Bill of Particulars.

In contrast is People v Greene, 163 Misc 2d 187, 193 (Criminal Court, Kings County 1994), where an identification notice listed the wrong time, by three-and-half hours, and place, which was "some distance away" from the actual place. The notice was found to be insufficient, because the notice specified a completely different identification scenario and, on its face, the misinformation in the notice affected the defense investigation and legal strategy. Again, in this case, the notice disclosed the exact statement, and on its face, disregarding the memo book later provided in discovery, the notice's three-hour discrepancy did not affect the defendant's ability to bring a suppression motion, investigate, or prepare for the hearing.

Recent post-Lopez cases interpreting alleged deficiencies in CPL 710.30(1)(b) identification notices illustrate the principle that a notice is adequate if it contains sufficient information to bring a suppression motion even though the notice may omit information crucial to the suppression hearing. For example, an identification notice of a corporeal identification by a particular witness need not include any information that the witness also made a photographic identification prior to the corporeal identification, although the prior photographic identification would be a crucial component of the Wade hearing. People v. Grajales, NYLJ, Feb. 2, 2004, p. 20, col. 1 (Supreme Court Kings County, J. Goldberg, J.), affd __AD2d __ (2nd Dept 2006) 2006 WL 1010432 (notice given of a point-out identification but not a prior photographic identification); People v. Simmons, 221 AD2d 484 (2nd Dept 1995) (notice given of a lineup identification but not a prior photographic identification).

Considering that a defendant is usually not present at the time of a photographic identification, a CPL 710.30(1)(b) notice that did not disclose the photographic identification would not contain sufficient information to allow defense counsel to prepare a strategy for the [*6]Wade hearing. Nevertheless, the notice would be sufficient to allow the defense to bring a timely motion to suppress, because, like statements, a motion to suppress an identification need not contain sworn allegations of fact. CPL 710.60(3)(b) and 710.20(b). The existence and details of the prior photographic identification procedure can be obtained by the defense through subsequent discovery in order to facilitate defense preparation for the hearing and trial.

This line of cases illustrates the point made in Lopez that a CPL 710.30 notice is sufficiently specific if it identifies the particular statement or corporeal identification that the People will seek to introduce at trial, so that the defendant may make a timely motion to suppress it, and if the defendant wishes to learn more about this evidence, the rules of pre-trial discovery apply.

Accordingly, the defendant's motion for preclusion is denied.

Dated: May 11, 2006 SO ORDERED

JOEL M. GOLDBERG

Judge