DECISION AND ORDERIntroduction Defendant Gregory DeJesus is charged with driving while intoxicated under the common law and failing to indicate an intent to turn until the turn was nearly completed. In his omnibus motion, defendant’s attorney moved to preclude any statements that defendant made to the police because the Assistant District Attorney did not serve him with a notice of intent to introduce statements as required by NY Criminal Procedure Law §710.30 [710.30 notice]. Defendant’s motion to preclude any statements he made to Rochester Police Officer Richard Rodriquez is granted.1 However, for the reasons discussed below, defendant’s motion to preclude any statements he made to Rochester Police Officer Jason Lathrop is denied.Procedural BackgroundAt defendant’s April 17, 2018 arraignment, the Court provided defendant’s attorney with several police generated documents associated with the charges. Among these documents was a 2-page document labeled, “710.30 Notice.” Across the top of this document is the following capitalized and bolded statement:PLEASE TAKE NOTICE THAT THE PEOPLE, PURSUANT TO SECTION 710.30 OF THE CRIMINAL PROCEDURE LAW, INTEND TO USE ALL STATEMENTS OR ADMISSIONS REFLECTED HEREIN MADE BY THE DEFENDANT TO A LAW ENFORCEMENT OFFICIAL.The document goes on to identify statements that were allegedly made by defendant to Rochester Police Officer Jason Lathrop. The Assistant District Attorney, however, did not serve a 710.30 notice of the prosecution’s intent to introduce statements on defense counsel, either at arraignment or at any subsequent time.On the scheduled date for both the argument of motions and suppression hearings, defense counsel argued that preclusion of defendant’s statements to the police officers, including those made by defendant to Officer Lathrop, was required because the Assistant District Attorney never served him with a 710.30 notice regarding those statements. After considering counsel’s arguments, the Court denied defendant’s preclusion motion, and offered defense counsel an opportunity to request a Huntley suppression hearing with respect to those statements. See NY C.P.L.R. §710.30(2). Stating that he was “forced now to make that request,” defendant’s attorney accepted the Court’s offer and asked the Court for a suppression hearing with respect to defendant’s statements made to Officer Lathrop.A combined probable cause and Huntley hearing commenced on June 6, 2018, and was adjourned for its completion to June 11, 2018. On that date, defense counsel verbally withdrew his previous oral motion to suppress defendant’s statements to Officer Lathrop, and orally reasserted his earlier motion to preclude such statements.Legal DiscussionThe starting point for analyzing defendant’s preclusion motion is NY Criminal Procedure Law [C.P.L.] §710.30. Pursuant to this well known rule of New York’s criminal procedure law:Whenever the People intend to offer at trial…evidence of a statement made by a defendant to a public servant,…they must serve upon the defendant a notice of such intention, specifying the evidence intended to be offered…within fifteen days after arraignment.NY C.P.L. §§710.30(1), (2). Undeniably, the People in this case did not serve defendant with the statutory notice of their intention to introduce at trial defendant’s statements to any police officers. For this reason, defense counsel contends that the People are categorically barred from introducing at trial defendant’s statements to Officer Lathrop.Notwithstanding defendant’s assertion and the provision’s ostensibly unconditional language, New York’s courts have carved out limited exceptions to the People’s service obligation under NY C.P.L. §710.30. The essential purpose of the statutory 710.30 notice requirement is to give the defense the opportunity to challenge, prior to trial, the voluntariness and admissibility of a defendant’s statements to public officials that the prosecution intends to introduce at trial. See People v. O’Doherty, 70 NY2d 479, 487 (1987). According to controlling judicial authority, an exception to the People’s 710.30 notice requirement exists where the purpose of the requirement was fulfilled because defendant was made aware by other means that the prosecution intended to introduce defendant’s statements at trial.The New York Court of Appeals articulated this exception in People v. Michel, 56 NY2d 1014, rearg. denied 57 NY2d 775 (1982). In Michel, as in this case, the prosecution did not serve on defendant statutory notice of its intention to introduce defendant’s written confession into evidence. However, the written confession had been negotiated, drafted, and signed by both defendant and his attorney. Further, the document specifically stated that it was “going to be used in court.” As result, according to the Michel Court, “the defense had actual notice of the prosecution’s intent to introduce the confession at trial.” People v. Michel, 56 NY2d at 1015. Interpreting the statutory notice service requirements, the Court observed that NY C.P.L. §710.30(2) “expressly permits the trial court to dispense with the notice requirement ‘[f]or good cause shown.’” Id. Because defendant in Michel had actual notice of the prosecution’s intent, the Court found that “good cause [existed] for dispensing with the statutory notice requirement.” Id.In 1989, the Court of Appeals affirmed this judicial exception to the 710.30 notice requirement in the context of police administered identification procedures. In People v. White, 73 NY2d 468, cert. denied 493 U.S. 859 (1989), a witness had identified defendant as the perpetrator at defendant’s first trial. After defendant’s first trial resulted in a mistrial, defendant was retried. Although they did not serve a 710.30 notice on defendant, the People called the same witness at defendant’s second trial to identify defendant as the perpetrator. The Court held that where there has been a prior in-court identification, such as at a Wade hearing, a felony preliminary hearing, or a previous trial, the purpose of the 710.30 notice requirement has been fulfilled because defense counsel is present and is aware that the People intend to introduce the witness’s identification testimony at trial. Consequently, under these circumstances, “the notice purpose of the statute is not implicated.” People v. White, 73 NY2d at 474.Similarly, in People v. Costello, 101 AD2d 244 (3rd Dep’t 1994), the Court, relying on People v. Michel, denied defendant’s motion to preclude statements made by defendant to a police informant despite the prosecution’s failure to serve a 710.30 notice on defendant. The Costello Court found ruled that the prosecution’s failure to serve a 710.30 notice was “excused” where defendant’s attorneys had heard the tapes of defendant’s statements long before trial, “and had been orally advised that the People intended to use them at trial.” People v. Costello, 101 AD2d at 248. See also People v. Wright, 283 AD2d 883, 884 (3rd Dep’t), lv. denied 96 NY2d 909 (2001); People v. Caudle, 128 AD2d 629, appeal denied 69 NY2d 1002 (1987); People v. Maldonado, 144 Misc 2d 338, 338-40 (Sup. Ct., Bronx County 1989).In this case, as in the cases discussed above, the prosecution did not serve a 710.30 notice on defendant. Nonetheless, in this case, as in the cases discussed above, defendant’s attorney received, within fifteen days of defendant’s arraignment, actual notice that the prosecution intended to introduce defendant’s statements to Officer Lathrop at trial. Under the circumstances, the purpose of the 710.30 notice requirements was wholly satisfied by defendant’s attorney’s receipt, at defendant’s arraignment, of the document entitled, “710.30 Notice” that stated that the People intended to use the described statements made by defendant. Accordingly, as in the cases discussed above, “good cause [existed] for dispensing with the statutory notice requirement” in this case. People v. Michel, 56 NY2d at 1015.ConclusionFor the reasons discussed above, defendant’s motion to preclude the statements he made to Police Officer Jason Lathrop was properly denied.2SO ORDERED.Dated: June 14, 2018
