People v Iavarone

[*1] People v Iavarone 2006 NY Slip Op 50948(U) [12 Misc 3d 1158(A)] Decided on May 22, 2006 Criminal Court Of The City Of New York, New York County Harris, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 22, 2006
Criminal Court of the City of New York, New York County

The People of the State of New York

against

Ralph Iavarone, Defendant.



2005NY072430



APPEARANCE OF COUNSEL

FOR THE PEOPLE

ROBERT M. MORGENTHAU

DISTRICT ATTORNEY

ONE HOGAN PLACE

NEW YORK, NEW YORK 10013

BY: ADA JOSEPH PERRY

FOR THE DEFENDANT

MICHAEL P. KUSHNER, ESQ.

THE BLANCH LAW FIRM, P.C.

350 FIFTH AVENUE

NEW YORK, NEW YORK 10118

Gerald Harris, J.

The defendant moves to preclude the use of statements allegedly made by him on the ground that the People have failed to serve timely notice, pursuant to CPL 710.30 (1)(a).

The People concede that, at the time of the defendant's initial arraignment, on November 1, 2005, statement notice was not given nor was it given within the following fifteen days. The complaint was signed by the complainant and, therefore, deemed an information at arraignment. A motion schedule was fixed and the case was adjourned to December 14, 2005 for the People's response to defendant's anticipated motion and for decision by the court.

On November 17, 2005, defendant served motions for discovery, preclusion of statement and identification evidence and to dismiss the complaint for facial insufficiency. On December 14, 2005, the People furnished a Voluntary Disclosure Form, dated December 12, 2005, in which the substance of a statement allegedly made by defendant to Detective Paul, by telephone, was set forth. The People also served and filed a superseding complaint signed by Detective Paul, together with a supporting deposition from the complainant who had signed the original complaint. The People also gave statement notice, pursuant to CPL 710.30(1)(a). The court

gave defendant an opportunity to supplement his motions so that he might address the newly-served statement notice. The case was adjourned to February 9, 2006 for response by the People and the court's decision.

The defendant, on January 23, 2006, served a supplemental motion which, among other things, sought suppression of "written statements of the Defendant" and renewed defendant's request that evidence for which timely notice had not been given, pursuant to CPL 710.30, be precluded.

On February 9, 2006, the People served and filed their response to defendant's motions as supplemented. The court granted a Huntley hearing and set March 21, 2006 as the date for hearing and trial. Later, on February 9, 2006, the defendant served and filed a document captioned "Withdrawal of Motion to Suppress" by which defense counsel withdrew the motion to suppress defendant's statements "and associated request for a Huntley hearing, filed January 23, 2006" and asserted that the motions to preclude defendant's statements, pursuant to CPL 710.30, remained in effect.

The defendant served a "Reply Affirmation" on February 21, 2006, challenging the [*2]People's contention that statement notice had been given timely because it was furnished within fifteen days of the "arraignment" on the superseding information. The defendant, in his Reply Affirmation, argues that the superseding complaint is, in all material respects, identical to the original complaint both as to the charges made and the facts alleged, except that it is signed by the detective rather than by the complainant who, instead, furnishes a supporting deposition. It is defendant's contention that the superseding compliant is merely "pretextual" and has been filed in an effort to circumvent the provisions of CPL 710.30.

The People's response to defendant's Reply Affirmation purports to assign a legitimate reason for the filing of a superseding information - that because the complainant and the defendant were not known to one another, the complainant had to be termed "the informant" and the arresting officer became the complainant or "deponent". However, the superseding information is still based on nothing other than the information allegedly furnished by the "informant" - formerly the complainant - to the arresting officer. Thus, the factual basis for the superseding information remains unchanged from that set forth in the original complaint.

CPL 710.30 provides that the People must serve notice of their intention to offer at trial evidence of a statement by a defendant to a public servant within fifteen days after arraignment and before trial. Absent such notice, statement evidence may not be received against the defendant at trial unless the People demonstrate good cause for late notice or the defendant has moved to suppress the statement and such motion has been denied. If the facts do not satisfy either exception, the People will be precluded from introducing such evidence at trial. People v. Boyer, 6 NY3d 427 (2006).

The Court of Appeals in People v. O'Doherty, 70 NY2d 479 (1987), has made clear that the central purpose of statement notice is to provide the defendant with the opportunity to obtain a pre-trial ruling on the admissibility of a statement to be used against him. An ancillary goal of the statute is the orderly, swift and efficient determination of pre-trial motions.

The circumstances which may relieve the People of the preclusive effects of untimely notice are specified in the statute. It is not within this court's authority to create further exceptions or to excuse strict compliance with statutory requirements even though the defendant is afforded an opportunity to supplement his motions and, therefore, may not be prejudiced by the Peoples' untimely notice. See, People v. Lopez, 84 NY2d 425, 428 (1994) ("It is irrelevant that the People's failure to satisfy the requirements of 710.30 did not prejudice defendant. The

statutory remedy for the People's failure to comply with the statute is preclusion; prejudice plays no part in the analysis").

The People offer no cause for late notice, let alone good cause, and that exception is, thus, unavailable. Nor has defendant waived his right to timely notice by having moved for a Huntley hearing to suppress statements. Although a hearing was granted it was never held, the defendant having withdrawn his motion. Thus, the waiver exception, which by statute is conditioned upon a denial of defendant's motion, is not here applicable. See, People v. Boyer, supra

The People argue that the notice given to the defendant was not late because it was given less than fifteen days after the People served and filed a superseding information. The People ask the court to treat that event as a new arraignment from which the notice period should be measured, citing People v. Lopez, 159 Misc 2d 264 (Crim. Ct. NY Co. 1993). [*3]

It is true that the statute speaks only of "arraignment" and does not specify whether that term refers to the arraignment on the initial complaint or encompasses subsequent occasions when that complaint may be superseded by an information or replaced by an indictment.[FN1] The court is aware of, and agrees with, the decisions that hold that an arraignment on an appropriate superseding information or an indictment retriggers the People's opportunity to give statement notice, provided that such pleadings are not served on the eve of trial when the giving of such notice would disrupt the swift, orderly and efficient processing of the case. For example,

in practice the People regularly serve a prosecutor's information at the time of trial of a misdemeanor and the defendant is arraigned on that document. Yet the People have never contended, so far as this court is aware, that they may serve statement notice at such a belated time.

Cases which hold that the People's time to give 710.30 notice is renewed by the filing of a new accusatory instrument include People v. Littlejohn, 184 AD2d 790 (2d Dept. 1992), lv. den. 81 NY2d 842 (1993) (time to give notice measured from filing of second indictment after the first indictment was dismissed as defective); People v. Haynes, 139 Misc 2d 762 (Crim. Ct. Queens Co. 1988) (time measured from day corroborating affidavit filed converting original complaint to an information); People v. Lopez, 159 Misc 2d 264 (Crim. Ct. NY Co. 1993) (time measured from filing of a superseding information which added new charges and new factual allegations); People v. Pamias, 139 Misc 2d 262 (Sup. Ct. Kings Co. 1988) (15-day period begins to run upon defendant's arraignment on an indictment which replaced a criminal court complaint); see also, People v. Baris, 116 AD2d 174 (4th Dept.), lv. den. 67 NY2d 1050 (1986) (15-day period for notice of wiretap begins to run from the date of the defendant's arraignment on the indictment).

What all of these cases have in common, and what is missing here, is the fact that the second accusatory instrument was filed for a purpose other than to merely extend the People's time to furnish statutory notice. The case bearing the closest resemblance to this case is People v. Lopez, 159 Misc 2d 264, and is the case principally relied upon by the People. In that case, the People filed a superseding information and then gave statement notice, although no such notice had been served at the defendant's arraignment on the original accusatory instrument. The defendant moved to preclude statements on the ground that the superseding information was a pretext to extend the People's time to give notice which had otherwise expired. The court denied defendant's motion, finding that the superseding information was not pretextual because it added new factual allegations and different charges. In the instant case no such justification is offered and none can be found.

The superseding information adds nothing to the original complaint by way of facts or charges; it is virtually identical except that the original complaint was signed by the complainant, and was deemed an information and the superseding information was signed by a [*4]detective, based on information furnished by the complainant who signs a corroborating affidavit. Nothing has changed and nothing is legally accomplished.

The court is constrained to find that the filing of the superseding complaint was merely a pretext intended to extend the time of the People to give statement notice. Thus, the filing of the

superseding information may not be viewed as an arraignment for purposes of measuring the time

within which the People are required to give statement notice - that time is measured from the

defendant's arraignment on the original information and, as the People concede, expired long before notice was attempted.

Accordingly, defendant's motions to preclude the use of the subject statement is granted as to People's direct case. However, a defendant's statement, precluded under 710.30 for failure to serve timely notice, may nevertheless, be used to impeach the defendant should he take the stand and give testimony inconsistent with the statement (see, People v. Oliver, 129 Misc 2d 432 (438) (Crim. Ct. Kings Co. 1985)) and cases cited therein). Since there is no allegation that the statement was coerced or otherwise involuntary, the People will be permitted, if appropriate, to use the statement for impeachment purposes. See, also People v. Lopez, 9 AD3d 692 (3d Dept. 2004) (unnoticed statements may be used for rebuttal).

Defendant's motion to dismiss the complaint for facial insufficiency apparently has not been ruled upon previously. The superseding complaint together with the supporting deposition adequately set for the facts which, if true, make out a prima facie case of assault in the third degree, attempted assault in the third degree and harassment in the second degree. Therefore, defendant's motion to dismiss the complaint is denied.

Defendant's request for a Wade hearing was conditioned upon timely identification notice. No such notice was given and the People, in their response to defendant's earlier omnibus motion, represented that they do not intend to introduce at trial the testimony of any witness who previously identified the defendant. Thus, there is no need for a Wade hearing.

Defendant's demand for discovery is granted to the extent of the voluntary disclosure and bill of particulars furnished by the People.

This opinion constitutes the decision and order of the court.

Dated: May 22, 2006___________________________________

New York, New York GERALD HARRIS

Judge of the Criminal Court Footnotes

Footnote 1:See, People v. Berisha, NYLJ, April 20, 2006, page 21, col.1 (Crim. Ct. Kings Co. Nadelson, J. ) "A defendant is arraigned both when the initial accusatory instrument is filed and then when that accusatory instrument is converted to an information. Section 710.30 of the CPL refers to notice being served within fifteen days after arraignment, not arraignment on a specific accusatory instrument."