On 4 January 1995, at the defendant’s arraignment on the felony complaint, the prosecution gave oral notice of its intent to use two statements that the defendant had made: (a) on 3 January 1995 at 10:40 p.m., in which the defendant stated that he “was coming from Church” and that the police “were always stopping him for this kind of stuff;” and (b) an audio-taped statement in which the defendant denied the crime. The prosecution also gave oral notice that the complainant had observed the defendant in a show-up at Beth Israel Hospital at 11:20 p.m. and had stated that the defendant “looks like the guy.” The prosecution further stated that three police officers, who were together in a car, had observed the defendant slashing the complainant and then grabbing her bag.
At his 15 June 1995 arraignment on the indictment, the criminal defendant was served with the Voluntary Disclosure Form (VDF). The first page, just above the statement and identification notice portions, stated that the crime was committed on 3 January 1995 at 10:30 p.m. in front of 231 East 14th Street and that the arrest occurred at 10:45 p.m. on 3 January 1995, in front of 309 East 10th Street. The VDF described the two oral statements made by the defendant: to a named Police Officer 3 January 1995 and its substance; and to a named Assistant District Attorney (ADA) at the District Attorney’s Office Complaint Room on 4 January 1995 and the substance of that statement. The identification notice portion of the VDF stated that on 3 January 1995 at Beth Israel Hospital, “hospitalized complainant suffering from injuries had opportunity to observe defendant and stated that he, in substance, ‘looks like the guy.’ In addition, several police eyewitnesses did identify him at the hospital.”
On 28 June 1995, a conference on the case was conducted at the bench and the prosecutor read the trial assistant’s write up (161 form) to the court and defense counsel. The 161 form included the information that the complainant was taken to the hospital for medical treatment and concluded: “When police bring D to hospital for show-up later that night, CW stated, in substance, that D ‘looks like’ the man who attacked her. At least three different police stated that they were certain that D was the man they observed attacked CW.”
Relying solely on the information contained in the notice portions of the VDF served at his arraignment, the defendant moved to preclude, for lack of adequate specific C.P.L. § 710.30 notice, the two statements made by him and the identifications made by the complainant-witness and by several police officers who witnessed the assault and attempted robbery. If preclusion was not granted, the defendant further requested Wade and Huntley hearings regarding every statement and identification.
The “central purpose” of the notice provisions of C.P.L. § 710.30 is to provide a defendant with adequate notice of statements and pre-trial identifications so as to permit him a meaningful opportunity to challenge the evidence at issue. The notice statute mandates that, whenever the People intend to use at trial, statements a defendant has made to a public servant or identification testimony by a person who previously identified the defendant at a police-arranged identification proceeding, the People “must serve upon the defendant a notice of such intention, specifying the evidence intended to be offered.”
To be timely, the statutory notice must be provided within fifteen days following arraignment, with two very narrow exceptions, neither of which was applicable to this case. The time limit was designed to serve “the orderly, swift and efficient determination of pretrial motions.” This requirement has been strictly enforced. The “good cause” required for late service of notice cannot be established by lack of continuity or other office failure, mere neglect, failure by the police to report the statement or identification to the prosecution, or lack of prejudice to the defendant. The penalty for failing to give adequate notice within the reglamentary period was preclusion of the evidence which should have been noticed. Deficiencies in the notice given by the prosecution cannot be remedied by discovery practice taking place outside of such period.
Although the degree of specificity required was not defined by the statute. A “blank notice” which tracks the language of the statute, stating only that a statement or identification would be introduced at trial was insufficient to meet this requirement. Drug Crime was also involved.
In Lopez, the Court of Appeals ruled that, for the notice to be sufficiently specific “the People were required to inform defendant of the time and place the oral or written statements were made and of the sum and substance of those statements * * * Full copies of the statements need not be supplied but they must be described sufficiently so that defendant can intelligently identify them.” Similarly, the People were also required to inform drug crime defendant of the time, place and manner in which the identification was made.
However, this cannot be read to require the reviewing court to ignore the written information provided to the herein defendant in the same document which contained the formal “notice” statements or to ignore notice given either before the arraignment on the indictment or within the fifteen day window following thereafter. A contrary interpretation would cause the ridiculous consequence of preclusion of an identification or statement even though the defendant actually received the specific notice to which he was entitled, merely because the details were not provided in a particular format labeled “statement notice” or “identification notice.”
Neither the notice statute nor any court has mandated a precise format in which the notice must be written in order to be valid. To the contrary, courts have ruled that the notice may be oral, and may be given before the arraignment on the indictment. Nor was there a requirement that the notice form be complete in itself. Notices have been found sufficient where the specifying details were provided by written material attached to the notice form, rather than in the notice itself, or by information provided orally.
So long as the intent to utilize the statement or identification at trial was clearly stated and the notice given was not misleading as to the number or specification of the statements or identification procedures to which it refers, the notice was generally sufficient, even if not complete in every detail.
Where the notice was otherwise correct and not misleading, minor mistakes can be corrected by amending the notice, even after the notice period has run. It was only when the notice was so erroneous as to mislead the defendant into understanding that the noticed identification procedure or statement was an entirely different procedure or statement than the one that the People actually seek to utilize that the errors cannot be corrected by amendment.
In this case, the claimed deficiencies in the formal notice provisions of the VDF were very minor. The criminal defendant argued that the notice in the VDF regarding the first statement stating the date, time, person to whom it was made, type and substance of the statement was inadequate because it did not include the exact location at which they were made. He further argued that the notice of the second statement was also insufficient because it did not contain the exact time at which the defendant made his audio-taped statement. The Court opined that the information provided, sufficiently described the two statements so that the defendant intelligently could identify them and move for a hearing to challenge their admissibility at trial, thereby complying with C.P.L. § 710.30(1)(a). As was ably stated by Judge Jasen in his dissenting opinion in Briggs, “where a defendant has been given ample time to prepare to challenge statements and can assert no claim of other prejudice, it is gamesmanship of the highest order to set aside a conviction on the basis of, what is at worst, a technical defect” in compliance with the notice statute.
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