People v Lewis

[*1] People v Lewis 2008 NY Slip Op 52171(U) [21 Misc 3d 1125(A)] Decided on November 5, 2008 District Court Of Nassau County, First District Engel, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 5, 2008
District Court of Nassau County, First District

The People of the State of New York, Plaintiff,

against

Johnny Lewis, Defendant.



2007NA029590



Hon. Kathleen Rice, Nassau County District Attorney

Attorney for Defendant: Lori Golombek, Esq.

Andrew M. Engel, J.

The Defendant is charged with Criminal Possession of a Controlled Substance in the Seventh Degree, in violation of Penal Law § 220.03.

The Defendant now moves for an order precluding the People from introducing as evidence at trial any and all statements, items and/or property which was not produced by the People in response to the Defendant's Demand Notice for Discovery and Bill of Particulars, pursuant to CPL §§ 710.30 and 240.70(1), or in the alternative, directing that a Huntley hearing be held; suppressing any tangible property seized from the Defendant, pursuant to CPL § 710.20(1), or in the alternative, directing that a hearing be held pursuant to CPL § 710.60; directing the People to deliver to the Defendant all evidence favorable to him, pursuant to Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963); directing the People to provide the Defendant with the names, addresses and telephone numbers of all witnesses and any statements made by such witnesses before any hearing or trial of this matter; and, directing that a hearing be held pursuant to People v. Sandoval, 34 NY2d 371, 357 NYS2d 849 (1974) and directing the People to provide the Defendant with a copy of his past criminal history and any prior bad or immoral acts which the People intend to introduce at trial in an effort to impeach the Defendant.

The People oppose the Defendant's motion, except to the extent that they consent to a hearing pursuant to People v. Huntley, 15 NY2d 22, 255 NYS2d 838 (1965), limited to the question of the voluntariness of the statements allegedly made by the Defendant, and to a Sandoval hearing to be conducted immediately before commencement of the trial herein.

MOTION TO PRECLUDE PURSUANT TO CPL §§ 710.30 and 240.70(1)

While the Defendant's Notice of Motion states that he seeks preclusion of any and all statements, items and/or property which has not been provided to the Defendant in response to his Demand Notice for Discovery and Bill of Particulars, the Defendant neither alleges that such demands were ever served upon the People nor submits copies of such demands for the court's consideration. A reading of the affirmation submitted in support of the Defendant's motion, [*2]however, reveals that what the Defendant is actually seeking is preclusion based upon the People's alleged failure to comply with CPL § 710.30(1) and/or (2). Specifically, the Defendant argues that the People did not timely serve him with notice of their intention to use at trial statements he is alleged to have voluntarily made to the police, and that the notice which was ultimately served upon him failed to indicate the content of such statements.

In opposition to this branch of the Defendant's motion, the People allege that they timely filed and served an appropriate notice upon the Defendant, pursuant to CPL § 710.30.

CPL § 710.30 provides, in pertinent part:

(1)Whenever the people intend to offer at 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 710.20, ... , they must serve upon the defendant a notice of such intention, specifying the evidence intended to be offered.

(2)Such notice must be served within fifteen days after arraignment and before trial, and upon such service the defendant must be accorded reasonable opportunity to move before trial, pursuant to subdivision one of section 710.40, to suppress the specified evidence.

(3)In the absence of service of notice upon a defendant as prescribed in this section, no evidence of a kind specified in subdivision one may be received against him upon trial ....

The clear purpose of this statute is to "facilitate a defendant's opportunity to challenge before trial the voluntariness of statements made by him (citations omitted)." People v. Lopez, 84 NY2d 425, 618 NYS2d 879 (1994): See also: People v. Rodney, 85 NY2d 289, 624 NYS2d 95 (1995); People v. Williams, 305 AD2d 702, 759 NYS2d 883 (2nd Dept. 2003) Moreover, this statute "was designed to serve an ancillary goal-the orderly, swift and efficient determination of pretrial motions[, consistent with] the enactment of article 255 of the Criminal Procedure Law (L.1974, ch. 763, § 1), the omnibus pretrial motion provisions which sought to impose order and speed on pretrial motion practice by requiring the defendant to make substantially all pretrial motions at one time, on one set of papers before one Judge, within 45 days after arraignment (citations omitted)." People v. O'Doherty, 70 NY2d 479, 522 NYS2d 498 (1987); See also: People v. Littlejohn, 184 AD2d 790, 585 NYS2d 495 (2nd Dept. 1992); People v. Shoukron, 234 AD2d 400, 651 NYS2d 883 (2nd Dept. 1996) In the absence of the timely service of a notice of intention, whether a defendant is prejudiced or not, in the absence of good cause shown or an unsuccessful defense motion to suppress, the only remedy is preclusion. See: 710.30(3); People v. Lopez, supra .; People v. Greer, 42 NY2d 170, 397 NYS2d 613 (1977); People v. Gee, 99 NY2d 158, 753 NYS2d 19 (2002)In the matter sub judice, the Defendant was arrested on November 10, 2007 and was given a Desk Appearance Ticket which directed him to appear in the Nassau County District Court on November 29, 2007. When the Defendant failed to appear on that date a bench warrant was issue. The Defendant then appeared on December 6, 2007, at which time the bench warrant was vacated and the Defendant was arraigned. The Defendant acknowledges that "defense counsel was not assigned at arraignment[;] (Cserhalmi Affirmation [*3]7/11/08, ¶ 18) and, the matter was adjourned to January 18, 2008 for the Defendant to appear with counsel. The People do not dispute that they did not serve the Defendant with a 710.30 notice at arraignment.

The People allege that on December 17, 2007 they served the requisite 710.30 notice upon the Defendant by mailing same to him at the same address reflected on the Desk Appearance Ticket and on the accusatory instrument upon which the Defendant was arraigned. In support thereof the People submit a copy of the notice filed with the court on that date, bearing the court's date and time stamp, along with the affidavit of service attesting to such service by first class mail. The Defendant has not submitted any papers in reply refuting this allegation; and, it is deemed admitted. See: Giliya v. Warren, 30 AD3d 420, 817 NYS2d 333 (2nd Dept. 2006); Mascoli v. Mascoli, 129 AD2d 778, 514 NYS2d 521 (2nd Dept. 1987); Siegel v. Tange, 61 AD2d 57, 401 NYS2d 269 (2nd Dept. 1978) The notice advised the Defendant that the People intended to offer the following oral statements, allegedly made on November 10, 2007 at 130 Hempstead Avenue, West Hempstead, New York, at the time of trial: (1) "I was arrested in December for CPCS for Heroin and did 4 months in jail," (2) "Go ahead, search my car, there is nothing in it," (3) Oh yeah, I forgot, my friend gave me the bag of heroin."

At the time of the Defendant's next court appearance, on January 18, 2008, the Defendant appeared, without counsel; and, the matter was adjourned to February 22, 2008, for the Defendant to retain counsel. On February 22, 2008 the Legal Aid Society was appointed to represent the Defendant; and, the matter was adjourned to March 10, 2008, and again to April 15, 2008.

On April 15, 2008 the People served defense counsel with their Voluntary Disclosure, Notices and Demands. The Defendant acknowledges receiving same on that date. Contrary to the Defendant's allegation, that this disclosure merely advised him that the People "intended to offer an oral statement at trial [but] did not include what this statement was comprised of[,]" (Cserhalmi Affirmation 7/11/08, ¶ 21) the first page of the People's disclosure clearly identified the date, time, place, and substance of the three (3) statements mentioned hereinabove. Additionally, annexed to the People's disclosure statement is a copy of the 710.30 notice mailed to the Defendant on December 17, 2007. On that same day, the People filed and annexed to the Misdemeanor Complaint [FN1] a certified Forensic Evidence Bureau report identifying the substance seized from the Defendant at the time of his arrest as .002 ounces of heroin. The Defendant was then arraigned on this Information; and, the matter was adjourned to May 21, 2008. See: CPL § 170.65(1)

On May 21, 2008 the matter was adjourned to July 15, 2008 for motions. On July 11, 2008 the Defendant filed the instant motion. [*4]

Based upon the foregoing, the following questions are determinative of this branch of the Defendant's motion: (1) was the mailing of the People's 710.30 notice to the Defendant on December 17, 2007 and/or (2) the service of the People's Voluntary Disclosure, Notices and Demands upon counsel for the Defendant at the time of Defendant's arraignment on April 15, 2008 timely and sufficient notice pursuant to CPL § 710.30. If either question is answered in the affirmative, this branch of the Defendant's motion must be denied.

In People v. Brown, 168 Misc 2d 923, 646 NYS2d 241 (City Ct. Rochester1996), the court granted the defendant's motion to preclude, due to the fact that the People's 710.30 notice was served directly upon the defendant and not upon counsel. In reaching its decision, the court noted:

There can be no question that when a party is represented by counsel in a pending action, papers to be served on the party must be served not upon the party directly, but upon the party's attorney, in the absence of a law, court order, or agreement providing otherwise ... It is equally clear that where a defendant in a criminal matter is represented, law enforcement officials may not communicate directly with the defendant relating to the subject of that representation in defense counsel's absence (citations omitted).

Based thereon, the court explicitly held, "once counsel has appeared for a defendant in a criminal proceeding, the requirement of CPL § 710.30(1) that the People serve their notice of intention to introduce evidence upon the defendant' must be read to require that such service be made not on defendant personally, but on defense counsel."

Brown, id., however is readily distinguishable from the matter presently before this court. In Brown, id. the defendant was appointed counsel from the Monroe County Public Defender's Office at the time of his arraignment. Counsel continued to represent him thereafter. In the matter sub judice, the Defendant was represented by counsel from the county's 18-B panel, for arraignment purposes only at the time of his arraignment on the original accusatory instrument. The matter was adjourned on two (2) occasions for the Defendant to obtain counsel; and, counsel was ultimately appointed on February 22, 2008. There is no question that the Defendant did not have counsel between the dates of December 6, 2007 and February 22, 2008, including December 17, 2007 when the People's 710.30 notice was served directly upon the defendant.

In this respect, the case before this court is more akin to People v. Sears, 195 Misc 2d 266, 757 NYS2d 836 (Just.Ct. Town of Webster 2003) wherein, following the defendant's arraignment and before the appearance of defense counsel in the case, the People served a 710.30 notice upon the defendant by mailing same to his residence address. Under such circumstances, the court denied the defendant's motion to preclude. By similar logic, there are a number of case holding that the service of a timely supporting deposition, in accordance with CPL § 100.25(2), directly upon the defendant, before the formal appearance of defense counsel in the case, is proper. See: People v. Bruce, 4 Misc 3d 1024, 798 NYS2d 346 (Dist.Ct Nassau Co. 2004); People v. Brady, 196 Misc 2d 993, 768 NYS2d 157 (Dist.Ct. Nassau Co. 2003); People v. Rossi, 154 Misc 2d 616, 587 NYS2d 511 (Just. Ct. Muttontown1992); People v. Scherbner, 21 Misc 3d 251, 863 NYS2d 352 (Just.Ct. Muttontown 2008) This court agrees. To hold otherwise would allow all defendants to compel the preclusion of all statements and identification proceedings by [*5]waiting until more than fifteen (15) days after their arraignment to seek counsel, making it impossible for the People to timely serve their 710.30 notices. Such an illogical and irremediable result would be inconsistent with the above described purpose of the statute.

The above notwithstanding, as was true in this case, in the District Court "a defendant must be arraigned at various stages of the proceedings-upon the filing of an information, a simplified information, a prosecutor's information or a misdemeanor or felony complaint in accordance with Sections 170.10 and 180.10 of the CPL." People v. Davis, 163 Misc 2d 947, 623 NYS2d 92 (City Ct. Long Beach 1995); See also: People v. Alcindor, 157 Misc 2d 725, 598 NYS2d 449 (Crim.Ct. Kings Co. 1993) "CPL Sec. 170.30 does not specify at which arraignment the 15 day period is triggered, nor is there any provision prohibiting the 710.30(1) notice at an arraignment on a superseding information." People v. Lopez, 159 Misc 2d 264, 603 NYS2d 948 (Crim.Ct. NY Co.1993) See also: People v. Littlejohn, 184 AD2d 790, 585 NYS2d 495 (2nd Dept.1992) [service of 710.30 notice at time of arraignment on second indictment timely]; People v. Berisha, 12 Misc 3d 344, 816 NYS2d 830 (Crim.Ct. Kings Co. 2006) ["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 15-days after arraignment, not arraignment on a specific accusatory instrument."]

In the matter before this court, there is no question that the Defendant was re-arraigned on April 15, 2008, following the annexation of a certified Forensic Evidence Bureau report to the misdemeanor complaint, converting it to an Information. See: CPL § 170.65(1) There is similarly no question that counsel for the Defendant was served with the People's Voluntary Disclosure, Notices and Demands on that day, which included all required details of the Defendant's alleged statements and a copy of the 710.30 notice allegedly served on December 17, 2007. In keeping with the above stated purposes of the statute, "the defendant was permitted to and did file pretrial motions after conversion of the accusatory instrument into an information. No delay in the order and speed of the pretrial motions was caused by the People's service of the 710.30 notice with the [Forensic Evidence Bureau] report." People v. Alcindor, 157 Misc 2d 725, 598 NYS2d 449 (Crim.Ct. Kings Co. 1993)

Having answered both of the above posited questions in the affirmative, the court finds that service of the People's 710.30 notice was proper. Accordingly, that branch of the Defendant's motion which seeks preclusion of his alleged statements is denied.

SUPPRESSION OF THE DEFENDANT'S STATEMENTS

People having consent to a Huntley hearing on the question of the voluntariness of the Defendant's statements, this branch of the Defendant's motion is granted to the extent of setting the matter down for a Huntley hearing to be held on December 17, 2008, the next date that this matter shall appear on the court's calendar.

SUPPRESSION OF TANGIBLE PROPERTY SEIZED FROM THE DEFENDANT

In the factual portion of the Information upon which the Defendant stands charged the complainant, police officer, alleges that on November 10, 2007, at 1:05 p.m., at 130 Hempstead Avenue, West Hempstead, New York, he "observed the defendant, Johnny Lewis was in possession of 1 white waxed envelope with blue lettering on it containing a white powdery substance alleged to be heroin. The alleged heroin was recovered from a Green 1993 Ford Explorer with a RegNo. CWR77983 and vin# [*6]

1FMDU34X2PUD27934." The Information does not provide any details as to how this observation was allegedly made or the circumstances under which the heroin was recovered from the vehicle. In opposing the Defendant's motion, the People supplement the Information by alleging that the Defendant was first observed switching the wheels of one vehicle with another and that it was discovered the license plates had been switched as well. The People allege that, upon questioning, the Defendant consented to the search of his person and of his vehicle, which resulted in the discovery of heroin therein.

The papers submitted by the Defendant in support of this motion, based upon information and belief obtained from "the various papers filed in connection with these proceedings and independent case investigation[,]" (Cserhalmi Affirmation 7/11/08, ¶ 2) allege that, at the time of his arrest, the Defendant was not acting in any manner that would have drawn police attention to him. Specifically, the Defendant alleges that he was operating his vehicle in a lawful manner when he was stopped for no legitimate purpose. Contrary to the People's allegations, it is the Defendant's claim that he did not possess any controlled substances, that there were no controlled substances in his vehicle and that he did not consent to the police searching his vehicle or his person.

It is the opinion of the court that the Defendant's papers, containing allegations concerning the events leading up to his arrest which are quite different than those alleged by the People, set forth "sworn allegations of fact" [CPL § 710.60(1)] sufficient to warrant a hearing on the suppression issues raised by the Defendant. See: People v. Mendoza, 82 NY2d 415, 604 NYS2d 922 (1993); People v. Burton, 6 NY3d 584, 815 NYS2d 7 (2006) Accordingly, those branches of the Defendant's motion which seek an order suppressing the statements allegedly made by the Defendant and suppressing tangible property recovered from the Defendant and/or his vehicle, are granted to the extent of ordering that a hearing be held pursuant to CPL § 710.60(4) to determine issues of fact and to reach conclusions of law as to whether or not the search of the Defendant's vehicle was proper, whether or not the heroin allegedly found in the Defendant's vehicle was the result of an unlawful search, See: Mapp v. Ohio, 367 U.S. 643; 81 S. Ct. 1684 (1961), whether or not the statements allegedly made by the Defendant were the fruits of an unlawful search and/or the result of a custodial interrogation in violation of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966); and whether or not there was probable cause for his arrest, See: Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248 (1979). This hearing shall be held on December 17, 2008, the next date that this matter shall appear on the court's calendar

DISCLOSURE OF EVIDENCE FAVORABLE TO THE DEFENDANT

Inasmuch as the People's affirmative duty to disclose exculpatory material, pursuant to Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), within their possession or control exists regardless of any order confirming it, regardless of the People's good or bad faith concerning the disclosure, and inasmuch as the People have acknowledged their continuing duty to turn over that material, Defendant's application for an order directing the People to turn over same is denied as unnecessary. (cf. People v. Morgan, 178 Misc 2d 595, 682 NYS2d 533 (Co. Ct. Fulton Co. 1998); People v. Jackson, 154 Misc 2d 718, 593 NYS2d 410 (S.C. Kings Co. 1992).

NAMES AND ADDRESSES OF WITNESSES

The discovery of the names and addresses of witnesses rests solely in the court's discretion. People v. Lynch, 23 NY2d 262, 296 NYS2d 327 (1968) There being "no statutory basis for such disclosure (CPL 240.20[1] )," People v. Izquierdo, 292 AD2d 247, 739 NYS2d 78 [*7](1st Dept. 2002) lv. den. 98 NY2d 698, 747 NYS2d 416 (2002); See also: People v. Pacheco, 38 AD3d 686, 832 NYS2d 248 (2nd Dept. 2007), same may be directed by the court where the Defendant has "demonstrate[d] a material need for such information and the reasonableness of the request (citations omitted)." People v. Miller, 106 AD2d 787, 484 NYS2d 183 (3rd Dept.1984); See also: People v. Estrada, 1 AD3d 928, 767 NYS2d 552 (4th Dept. 2003) lv. den. 1 NY3d 627, 777 NYS2d 26 (2004) In the matter before this court, the Defendant has done neither, simply alleging, in conclusory fashion that "[d]iscovery of the names, addresses and telephone numbers of potential witnesses to the incidents which form the basis of the charges herein is essential to the ability of the defendant to prepare this case for trial." (Cserhalmi Affirmation 7/11/08, ¶ 34)Accordingly, this branch of the Defendant's motion is denied.

PRIOR CRIMINAL AND/OR BAD ACTS

The permissible use of the Defendant's prior criminal history, or specific uncharged criminal, vicious or immoral conduct of which they have knowledge and which they intend to use at trial shall be determined at a hearing to be conducted immediately before trial, at which time the People shall notify the Defendant of all such specific instances.

This constitutes the decision and order of the court.

Dated: Hempstead, New York

November 5, 2008

___________________________

ANDREW M. ENGEL

J.D.C. Footnotes

Footnote 1: While the document upon which the Defendant was originally arraigned was labeled a District Court Information, lacking a proper supporting deposition establishing the nature of the substance allegedly seized from the Defendant, the original accusatory instrument was actually a Misdemeanor Complaint which could be converted to an Information upon the filing of the appropriate supporting deposition, here the certified Forensic Evidence Bureau report. See: CPL §§ 100.10(1) and (4), 100.15, 100.40, 100.50(3), 170.65(1)