People v Ewangelista

[*1] People v Ewangelista 2004 NY Slip Op 51404(U) Decided on November 9, 2004 District Court, Suffolk County 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 9, 2004
District Court, Suffolk County

THE PEOPLE OF THE STATE OF NEW YORK

against

THOMAS EVANGELISTA, Defendant.



2003SU049719



Thomas J. Spota III, DA (Harmon Lutzer, Assistant District Attorney), for plaintiff. Michael Anastasiou, Esq., for defendant.

Howard M. Bergson, J.

The defendant is charged with operating a place of assembly for the consumption of alcoholic beverages for profit or pecuniary gain without a license in violation of section 64-B of Alcohol Beverage Law. Pursuant to the order of this court dated June 7, 2004, a combined Wade, Dunaway and Huntley hearing was ordered. Although the order granted a Huntley hearing, the defendant's actual application was for a hearing to preclude as a result of the lack of notice required by section 710.30(1)(a) of the CPL. The hearing was conducted subsequent to the defendant reasserting that position.

The hearing began on September 14, 2004, continued on September 22, 2004 and concluded on October 18, 2004. Steven Blindbury, a former investigator for the State Liquor Authority, and Sergeant Richard Matero of the Suffolk County Police Department testified for the People.

Their testimony established that the premises located at 1795 Route 25 in Centereach, New York, was being operated without a license as "The Purple Rose Social Club" for pecuniary gain and that the premises had the capacity and were in fact occupied by twenty or more persons for the purpose of consuming alcoholic beverages. Additionally, Sgt. Matero's testimony established that the defendant claimed to be an operator of the club.

IDENTIFICATION [*2]

Based upon the credible testimony, the Court finds that no improper or unduly suggestive police procedures were used in identifying the defendant. In this regard, the defendant was arrested based upon an oral statement made to or in the presence of Sgt. Matero. This statement, which was the subject of the preclusion motion, implicate the defendant as the operator of the premises where the alleged violation occurred. Since there wasn't any identification nor any improper procedure the motion to preclude is denied.

PROBABLE CAUSE

The defendant's contention that there was a lack of probable cause is without merit. The unrefuted testimony of Investigator Blindbury established that he personally observed conduct that violated section 64-B of the Alcohol Beverage Law. That conduct was connected to the defendant by the oral statement testified to by Sgt. Matero. The testimony was that the defendant told Sgt. Matero that "I don't need a license, this is a social club. The alcohol all belongs to our customers. Those are my coolers." The above establishes reasonable cause to arrest as required by Criminal Procedure Law Section 140.10.

PRECLUSION

Upon the arraignment on the 2003 misdemeanor information, the People served their form notice referring to section 710.30 of the CPL. The form did not contain any specific statement but the first sentence of the form referred to statement(s) contained in the accusatory instrument. The specific language used in the form was as follows:

"Please take notice that the People intend to offer at a trial of the above entitled action statement(s) by and/or identification of the defendant contained in or attached to the accusatory instrument, or otherwise specified below." (Emphasis added)

The information contains a reference to an admission made by the defendant within the presence of Sgt. Matero. The information states:

"This information is based in part on the defendant's conversation with your deponent where he introduced himself as 'Tom' and he stated that he was the 'owner of the club'."

At the hearing, Sgt. Matero testified that the defendant, after being told that he was operating a social club without a license stated that he didn't need a license and that his lawyer had told him that it was a social club where the customers bring their own liquor. This statement was part of a conversation wherein the defendant stated, as indicated above, "I don't need a license this is a social club, the alcohol belongs to the customers, those are my coolers."

Section 710.30 (1)(a) of the CPL requires that the People give notice to the defendant whenever they intend to offer at trial evidence of a statement made by the defendant to a public servant engaged in law enforcement which would be suppressible, pursuant to the CPL, if involuntarily made. The notice must inform the defendant of the time, date and place that the statement was made and must contain the sum and substance of the statement. See People v. [*3]Lopez, 84 NY2d 425, 428, 618 N.Y.S.2d 879 (1994).

It should be noted that the issue of voluntariness was not raised by the defendant pursuant to his motion as that would have resulted in a waiver of the defendant's right to bring an application to

preclude for failure to serve the notice required by CPL 710.30(1)(a).

Nevertheless, the determination as to whether a statement is voluntary and/or the result of police custodial interrogation is for the Court and not the parties to decide. People v. Chase, 85 NY2d 493, 500, 626 N.Y.S.2d 721 (1995). While the Court of Appeals reaffirmed its ruling in People v. Greer, 42 NY 2d 170 (1997), which held that where there was no question of voluntariness the notice pursuant to section 710.30 (1)(a) was not required, the Court made clear that where statements are made to law enforcement officials, notice was required so that the defendant would be able to obtain court review of the circumstance under which the statement was given and to determine its voluntariness.

Therefore, the predicate question presented for resolution is whether or not the circumstance surrounding the defendant's statement raises some issue of voluntariness. Sgt. Matero testified that the statement of the defendant was made upon the Suffolk County Police Department taking control of the premises located at 1795 Route 25, Centereach, New York, know as "The Purple Rose Social Club". The taking of control of said premises and the limitation placed upon the occupants (however slight in duration) raises the question of whether or not the statement was voluntary and/or the result of custodial interrogation (or its equivalent) and therefore subject to a motion to suppress. As a result thereof, it is clear that notice, pursuant to section 710.30 (1)(a) was required.

The remaining question is whether the notice, which contains the reference to the statement contained in the accusatory instrument, was sufficient. See People v. Lopez, supra, pg.428.

The language of the 710.30(1)(a) notice served by the People contains a reference to the statement as contained in the accusatory instrument and of the People' s intention to introduce said statements at trial. The statement contained in the misdemeanor information was set forth in quotes and not merely part of the boiler plate language. See People v. Calise, 167 Misc 2d 277, 639 N.Y.S.2d 671 Crim Ct 1996. The defendant and his counsel had "notice" of the sum and substance of the statements as well as the time, date and place where the statement was given. They were afforded an adequate time to challenge the admissibility of the statement. See People v. Gee, 99 NY2d 158, 753 N.Y.S.2d 19 (2002), People v. Laporte, 184 AD2d 803, 584 N.Y.S.2d 662 (App. Div. 3d 1992) People v. Lopez, supra. Therefore, the motion to preclude is denied.

Dated : November 9, 2004 J.D.C.

Thomas J. Spota III, DA (Harmon Lutzer, Assistant District Attorney), for plaintiff. Michael Anastasiou, Esq., for defendant.