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Grand Jury Testimony is challenged

On 16 December 1983, the County Court of Nassau County rendered judgment convicting a certain defendant of criminal possession of a weapon in the third degree, after a nonjury trial. The defendant appealed from that judgment. The appeal brought up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress a statement made by him to the police. The judgment was affirmed by the Appellate Court. DWI was not the impetus.

First, the defendant’s claim that the shotgun recovered by the police at the scene of the crime should have been suppressed because the People failed to document the operability of the weapon was not preserved for appellate review. Nonetheless, the Appellate Court still ruled upon its admissibility. It held that the shotgun was admissible in evidence since reasonable assurance of identity and unchanged condition of that weapon existed from the trial testimony of the police officer who identified it as the exact weapon he recovered from the scene of the crime. What’s more, a firearms examiner testified that when he examined the weapon it was operable. Any deficiencies in the chain of custody did not in any way relate to the admissibility of the gun but to the weight that the jury accorded that evidence. This was the same ruling that the court held in the case of People v. Capers. Robbery was not involved.

Second, the hearing court correctly refused to suppress the defendant’s unsolicited, voluntary and spontaneous statement uttered while he was awaiting transfer to a cell. This was also the ruling in the celebrated case of People v. Ferro and the case of People v. Lanahan. Well established is the rule that questioning on the subject of pedigree information is not likely to evoke inculpatory responses and therefore it need not be preceded by Miranda warnings; as held in the cases of People v. Johnson and People v. Rodriguez. Here, aside from seeking pedigree information, the defendant was not subjected to any other type of express questioning or its functional equivalent. Thus, the hearing court’s determination that the defendant’s statement was spontaneously made and therefore admissible should not be disturbed as held in the case of People v. Harrell, in the case of People v. Boyd, and in the case of People v. Tyler.

Third, the defendant’s claim that the trial court erred in permitting the People to introduce his Grand Jury testimony into evidence was without merit. According to the defendant here, since he was not conversant in English, the waiver he signed was ambiguous. The defendant also claimed that he was not put on notice pursuant to CPL 710.30 and that his Grand Jury testimony could be introduced into evidence. These claims were not preserved for review. The court cannot consider these claims pursuant to CPL 470.05[2] and the case of People v. Claudio. In any event, the record of the Grand Jury procedures established voluntariness, representation and discussion with the defendant’s attorney, and the fact that he was specifically advised that his Grand Jury testimony could be used against him. Further, at trial, before the Grand Jury minutes were introduced into evidence, the defendant himself conceded that he waived his immunity, testified voluntarily and was duly represented by counsel during that testimony. Thus, the defendant’s belated claim that the challenged statement was involuntary must be rejected. This is clearly stated in CPL 710.40[2].

Fourth, the defendant’s Grand Jury testimony was properly admitted into evidence. The clear purpose of CPL 710.30 notice is to afford a defendant adequate time in preparing his case with respect to the voluntariness of his confession or admission. As a rule, the notice of intention to offer evidence need not be served upon the defendant where there is no question of voluntariness as held in the case of People v. Greer.

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