The defendants, as specified herein, filed various motions^[FN1] to preclude both statements made to public servants for lack of notice pursuant to CPL 710.30 (1)(a), and a joint-motion to preclude evidence of video surveillance recordings at trial (CPL 240.70 [1]). In consideration of these motions, and various arguments made on-the-record before this Court, the defendants' motions are decided as follows:

The defendants are New York City Police Officers who, at the time of the alleged crimes, were assigned to the Brooklyn South Vice Squad and have been indicted for Burglary in the [*2]Third Degree (PL 140.20) and related charges^[FN2].

It is alleged that on April 12, 2006, the three defendants were part of an undercover enforcement operation at 4214 Eighth Avenue in Brooklyn, which, at the time, was a purported unlicensed massage parlor. After the defendants and other police officers arrested the owner of the establishment and seven of his female employees, those individuals were brought to the 72nd Precinct for processing. All individuals under arrest were to be charged with prostitution-related offenses that ostensibly occurred at the establishment.

While at the 72nd Precinct, the owner spoke with the third defendant, Police Officer Hamm. The owner informed Officer Hamm that he had a video surveillance system in his establishment. Officer Hamm was told by the owner that this video system recorded the activity in the establishment at the time of the alleged crimes and that these recordings would exculpate him and his co-arrestees.

The individuals arrested for prostitution-related offenses were arraigned upon misdemeanor complaints in Red Hook Community Court in Brooklyn. Supporting depositions were filed in connection with their respective misdemeanor complaints. The supporting depositions, allegedly signed by Lieutenant Wong in an undercover capacity, affirm that the females charged in the complaint engaged an undercover - Lieutenant Wong - in conversations through which they offered him sex acts in exchange for money. All the individuals arrested refused plea offers at their arraignment.

Subsequent to the arraignments in Red Hook Community Court, Joshua Charlton, the Assistant District Attorney assigned to that court spoke with Lieutenant Wong^[FN3] to express his concerns about the cases. Specifically, ADA Charlton noted issues regarding the supporting depositions wherein Lieutenant Wong affirmed that he had sex-related conversations with the women in question where he was offered sex by these women in exchange for money. Lieutenant Wong allegedly admitted to ADA Charlton that, in fact, he did not have any sex-related conversations with the women. ADA Charlton had a similar conversation with Sergeant Tso^[FN4] during which Sergeant Tso made only a seemingly innocuous reply that any problems with the prostitution cases were, in substance, "the problem of the Assistant District Attorney."

On April 13, 2006, the three defendant police officers went to 4216 Eighth Avenue in Brooklyn - next door to 4214 Eighth Avenue (the "massage parlor") - under the guise of a gambling investigation. Evidence was adduced before the Grand Jury that on April 13, 2006, the three defendants broke the rear door of 4214 Eighth Avenue, entered and stole surveillance cameras, video recordings, a computer and other items. The evidence includes an interior video recording of the break-in at 4214 Eighth Avenue, which also reflects the presence of three individuals who appear to be the defendants and were identified as such through the testimony of [*3]a police official.

A computer, allegedly obtained from 4214 Eighth Avenue, was recovered from Lieutenant Wong's office at the Brooklyn South Vice Squad. Other computer equipment from 4214 Eighth Avenue was allegedly recovered from Lieutenant Wong's residence and the residence of his girlfriend.

Various law enforcement officials testified before the Grand Jury that: (1) Lieutenant Wong had not properly "converted" the computer recovered from 4214 Eighth Avenue for police use pursuant to established procedure, (2) there was no police enforcement activity at 4214 Eighth Avenue for April 13, 2006, (3) no individual could pass from 4216 Eighth Avenue to 4214 Eighth Avenue without having to exit to the outside yard, and (4) two of the three defendants - Lieutenant Wong and Sergeant Tso - operated in an undercover capacity during the initial operation, while Officer Hamm was part of the team that supported the undercover officers.

As directed in this Court's decision and order, dated January 19, 2007, the People provided a detailed account^[FN5] of all statements made by the defendants to any member of law enforcement in connection with this case.

In addition to those statements made by Lieutenant Wong and Sergeant Tso to ADA Charlton, on July 29, 2006, Officer Hamm made statements to officers of the Internal Affairs Bureau (hereinafter "IAB") and Assistant District Attorneys who were investigating the instant case prior to indictment. Further, Lieutenant Wong was questioned by officers of IAB at his home on July 29, 2006.

The People concede that notice pursuant to CPL 710.30 (1)(a) was not served. Further, during a calendar call on January 19, 2007, the People conceded on-the-record that they would not seek to use those statements made by the defendants to IAB officers. The People's concession, however, was implicitly withdrawn by virtue of their response^[FN6] to the defendants' preclusion motions. In their response^[FN7], the People argue that no statement by any defendant should be subject to preclusion and that all statements should otherwise be admissible because the statements "were not made under threat of physical force, nor by any other improper conduct that pressured them to make such statements" and there were no inducements or promises that "created the risk of self-incrimination."

Counsel to defendant Hamm argues that Hamm's statements made on July 29, 2006 should be precluded due to lack of notice. Counsel to defendant Wong avers that only those statements made to Internal Affairs on July 29, 2006 required statutory notice, but not those statements allegedly made on May 22, 2006 to ADA Charlton. Defendant Tso has not moved for preclusion.

Finally, all three defendants move to preclude (CPL 240.70 [1]) the introduction of the video evidence. The People were able to secure from the business owner of 4214 Eighth Avenue [*4]the video recordings that were presented to the Grand Jury. That video evidence, however, was downloaded by the owner onto a "memory stick" and allegedly constitutes only a portion of the total video recorded upon the original media. Thus, the defendants assert that those relevant portions of Article 240 of the Criminal Procedure Law require the People to secure the original video media from its civilian owner or incur preclusion of the video evidence at trial.

The People have the obligation pursuant to CPL 710.30 (1)(a) to serve timely notice of a statement made by the defendant to a public servant in order that a timely motion to suppress the evidence may be made. People v. Lopez, 84 NY2d 425 (1995); Preiser, Practice Commentaries, McKinney's Cons. Law of NY, Book 11A, CPL 710.30, at 218-219.

The defendants may challenge the statements upon the following three grounds: that those statements were (1) elicited by threat of physical force or other improper conduct or undue pressure; (2) induced by a promise or statement made to defendant which created a substantial risk of false self-incrimination; or (3) obtained in violation of defendants' constitutional rights (see, CPL 60.45 [2]). People v. Rodney, 85 NY2d 289, 292 (1995).

Statements Made By Defendant Wong (May 22, 2006) and Defendant Tso (June 5, 2006) to Assistant District Attorney Joshua Charlton:

Despite the fact that neither defendant Wong nor defendant Tso challenge their statements made to ADA Charlton, the Court believes that a brief juxtaposition of the circumstances of those former statements is appropriate with those of the latter statements made by defendants Hamm and Wong to IAB officers and Assistant District Attorneys who investigated the instant case.

"When there is no question as to the voluntariness of a defendant's statement to a public servant, as in the case of res gestae statements, notice to the defendant of the intention to offer such statements into evidence is not required." People v. Wells, 133 AD2d 385 (2d Dept 1987), citing, People v. Greer, 42 NY2d 170 (1977). See also, People v. Copes, 200 AD2d 680 (2d Dept 1994). This necessarily includes those statements "allegedly made at the time of or immediately preceding the crimes charged." People v. Fisher, 266 AD2d 308, 309 (2d Dept 1999).

The facts of the instant case pertaining to those statements made to ADA Charlton are starkly similar to those found in People v. Feola, 2005 NY Slip Op 51264U, 8 Misc 3d 1024A (Sup Ct, Kings County 2005, Collini, J.).

In Feola^[FN8] three police officers were charged with assault in connection with their arrest of a motorist, while two of the three officers were charged with making false statements in the form of corroborating affidavits related to that arrest. [*5]

Defendant Feola had a telephone conversation with the Assistant District Attorney in charge of processing the criminal court complaint against the motorist. The People sought to introduce those statements at Feola's trial. Despite Feola's concession that the statements were voluntarily made, he nevertheless moved to preclude those statements due to the absence of notice pursuant to CPL 710.30 (1)(a).

The Feola court distinguished its facts from that of People v. Chase, 85 NY2d 493 (1995). In Chase, the defendant was placed in the back of a police vehicle, and approximately twenty seconds later gave a spontaneous statement for which the People did not serve notice. The defendant made subsequent statements to the police for which notice was served, but argued that those subsequent statements should be suppressed as fruits of the poisonous tree. The People claimed that notice of the initial statement was unnecessary because the statement was voluntary. The Court of Appeals, however, held, "It is for the court and not the parties to determine whether a statement is truly voluntary or is one in which the actions of the police are the functional equivalent of interrogation causing the statement to be made." Id. at 500.

Despite the fact that the lower court in Chase found the statement to be completely voluntary, the Court of Appeals held that because the statement was made to a law enforcement official, the defendant had the right for a court to review the circumstances surrounding that statement. The Feola court proceeds to cite two cases to demonstrate that the holding in Chase may not be wholly solidified on this particular question of notice. See, People v. Richard, 229 AD2d 787, 789 (3d Dept 1996), lv. denied, 89 NY2d 928 (1996) (citing Chase, in dictum, that notice was not required because defendant's statement was "truly spontaneous and, therefore, voluntary"); People v. Rodney, 85 NY2d at 292-293 (responses to routine booking questions as exempt from the notice requirement).

Further, the First Department and Fourth Department have subsequently held statement notice to be unnecessary when there is no question as to voluntariness. See, People v. Garcia-Lopez, 308 AD2d 366 (1st Dept 2003), lv. denied, 1 NY3d 572 (2003) (statement made during drug transaction by defendant to undercover officer that defendant shot a girl did not require notice as "there was no question of voluntariness"); People v. Williams,21 AD3d 1401 (4th Dept 2005), lv. denied, 5 NY3d 885 (2005) (where defendant made incriminating statements spontaneously in the course of illegal conduct notice was not required).

The Feola court touched upon an extremely salient point in the comparison of its facts to Chase: only the prosecution in Chase stated that there was no question as to the voluntariness of the defendant's initial statement, while the defendant asserted that her initial

statement was involuntarily made. In Feola, the court was not required to make a factual determination regarding voluntariness as both parties conceded that the statements made by Feola were voluntary. The same is true in the instant case pertaining to those statements made to ADA Charlton, but not those statements made to IAB officers and the investigating Assistant District Attorneys.

Similar to Feola, defendant Wong and defendant Tso made their statements to ADA Charlton as part of their filing of the cases against the individuals they arrested for alleged prostitution-related offenses despite the fact that those statements came after the arraignments of those individuals. ADA Charlton was merely consulting with the officers as to the viability of the alleged prostitution cases due to those individuals rejecting any plea offer at arraignment. [*6]

As the Feola court held^[FN9], "Unlike the vast majority of cases in which the preclusion statute comes under judicial review, the defendant[s] in this case [were] not in custody, [were] not being interrogated and [were] not being asked to make a self-incriminating statement."

In any event, as those statements made by defendant Wong and defendant Tso to ADA Charlton were clearly voluntary and part of the res gestae of the crime, notice pursuant to CPL 710.30 (1)(a) was not required. Thus, these statements are admissible at trial upon the People's case-in-chief.

Statements Made to Internal Affairs Officers and Assistant District Attorneys (July 29, 2006)

The circumstances surrounding those statements made by defendant Wong and defendant Hamm to IAB officers and the Assistant District Attorneys on July 29, 2006 are entirely different from the earlier statements. Regardless of whether the People's previous concession is binding as to these statements, the Court hereby decides the defendants' requests for relief as a matter of law. People v. Lewis, 26 NY2d 547, 550 (1970).

Here, when one the reviews facts as asserted by the People surrounding these statements, all three grounds cited in People v. Rodney, supra, become self-evident. Further, unlike Feola or those statements made to ADA Charlton in this case, a legitimate question is posed as to the voluntariness of the statements made on July 29, 2006.

First, defendant Hamm was present at the District Attorney's office, without counsel, at approximately 6:30 a.m on Saturday, July 29, 2006. Present with defendant Hamm were two Assistant District Attorneys, a detective-investigator for the District Attorney's office, as well as a captain and sergeant assigned to IAB. Defendant Hamm was shown photographs of him allegedly re-entering 4214 Eighth Avenue on April 13, 2006 with Lieutenant Wong and Sergeant Tso. He was told by the Assistant District Attorney^[FN10], inter alia: (1) "this was a very serious matter," and (2) that he (Hamm) could "avail himself [sic] counsel and be arrested for Burglary or he could help himself and tell what happened on that day 4/13/06."

Contrary to those arguments set forth in the People's response, it is patently clear by the reports generated by the police and People surrounding the interview of defendant Hamm that, at minimum, inducements were made in order to obtain a self-incriminating statement from the defendant.

Second, a lieutenant and sergeant from IAB questioned defendant Wong at his own residence on Saturday, July 29, 2006 at approximately 9:00 a.m. Defendant Wong admitted having "converted" certain property recovered from 4214 Eighth Avenue, including that certain property was in his residence. Additionally, the IAB officers noted that they "withdrew from the conversation [with Wong] so that a conferral could take place regarding Miranda Warnings." Although a decision was made to cease further questioning of Wong, other information was gathered, including the fact that Wong's girlfriend was holding in her residence some of the property Wong allegedly recovered from 4214 Eighth Avenue. [*7]

While counsel for defendant Wong properly concedes that those statements made to ADA Charlton did not require notice, counsel is equally correct that those statements made by defendant Wong - and defendant Hamm - to IAB officers and Assistant District Attorneys on July 29, 2006 required statutory notice to the defendants.

Here, those same reports generated by the police and provided to the defendants via discovery speak for themselves with regard to the circumstances surrounding defendant Wong's statements to IAB officers on July 29, 2006. Unlike Feola, there are questions as to the voluntariness of these statements.

Accordingly, the defendants' motions to preclude those statements made to public servants on July 29, 2006 is hereby GRANTED to the extent that the People are precluded from introducing those statements on their case-in-chief. People v. Lopez, 84 NY2d 425 (1995); People v. O'Doherty, 70 NY2d 479 (1987).

As to that branch of defendant Hamm's motion which seeks the total preclusion of these statements at trial, including for possible impeachment purposes, the defendant's motion is DENIED, and a hearing to determine the voluntariness of those statements is GRANTED in accordance with previous on-record argument made by the parties. People v. Hults, 76 NY2d 190, 198 (1990); People v. Harris, 25 NY2d 175 (1969); People v. Russell, 277 AD2d 404 (2d Dept 2000); People v. Connor, 157 AD2d 739 (2d Dept 1990).

The People set forth several pertinent facts in their relevant papers and on-record arguments before the Court, that: (1) from the inception of this case, the People have been dealing with the civilian complainant and his attorney regarding certain computer and video media possessed by that civilian, (2) the People only recently received from the complainant a computer hard drive, and (3) a review of the hard drive by forensic experts in IAB revealed that the hard drive was not the original recording device, and, it does not contain any video or other data relevant to April 12, 2006 or April 13, 2006, but, rather, only for April 20, 2006, the latter date being entirely irrelevant to these proceedings.

All three defendants, in their joint motion, note that based upon a still photograph supplied by the complainant that was generated from the video recording, the video surveillance system recorded video approximately two hours prior to the defendants' alleged entry on April 13, 2006. Further, the defendants allege that the People have made "minimal, if any efforts" to secure possession of the elusive original video media.

Those legal avenues that require the production by the People of certain evidentiary items upon demand of a defendant, or as otherwise required by law, such as those found under Article 240 of the Criminal Procedure Law, including Rosario material, or material pursuant to Brady v. Maryland, 373 US 83, are limited in their application to evidence in the control and possession of the People. See, People v. McCargo, 251 AD2d 600 (2d Dept 1998); Matter of Nassau County v. Sullivan, 194 AD2d 236, 238-239 (2d Dept 1993); People v. Wright, 225 AD2d 430 (1st Dept 1996).

Here, it is undisputed that the People are not, nor were they in possession of the material sought by the defendants. As to the defendants' collective allegations that the People made little [*8]or no efforts to secure the video media, or that they otherwise acted in bad faith, those allegations are belied by the facts set forth in People's papers and various on-record conferences before this Court.

As the People correctly note in their response papers, dated April 4, 2007, the complainant was not acting as an agent of law enforcement when he caused the video surveillance to be recorded. Clearly, all relevant video recordings were made prior to any involvement by law enforcement in the instant matter.

In any event, as the requested material is not in the People's possession, nor is such material legally within the control of the People (see, e.g., People v. Washington, 86 NY2d 189 [documents of the Office of Chief Medical Examiner are not in the custody or control of the People]), the People have violated no duty owed to the defendants. Neither does the fact that the People agreed to open file discovery alter this legal dynamic. See, People v. Wright, 225 AD2d at 431. Thus, this Court may not consider preclusion nor any other sanction against the People.

Accordingly, the defendants' motion to preclude evidence of video recordings is DENIED.

SO ORDERED.

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HON. ROBERT K. HOLDMAN, J.S.C.

Judge of the Court of Claims