By his omnibus motion, Defendant makes eight applications to this Court on the bases set forth below:

1)to preclude use of Defendant's statements because the People failed to give timely notice under Criminal Procedure Law ["CPL"] §710.30;

2)to suppress the handgun found by the Hastings-on-Hudson Police Department ["HPD"] in Defendant's apartment because the Police seized the gun without a warrant and did not give Defendant proper warnings;

3)the third application was withdrawn by Defendant in his reply papers ^[FN1];

4)for Discovery;

5)for a Bill of Particulars; [*2]

6)for production of documents;

7)for Brady material, including open file discovery in the criminal file of People vs. Karen BenBen;

8)to preclude evidence of prior record and bad acts; and

9)to reserve the opportunity to make a future application for other possible relief.

The People responded to Defendant's applications by:

1)not disputing late service of the §710.30 notice but stating that the People will use Defendant's statements solely for possible impeachment of Defendant if he takes the stand in his own defense;

2)opposing suppression of the gun, arguing that Defendant was not in custody and voluntarily gave the HPD permission to enter the apartment and arguing that Karen BenBen's 911 call informed the HPD of the gun's existence and impliedly consented to entry into the apartment that she shared with Defendant;

3)withdrawn [see footnote 1];

4, 6, 7) agreeing to provide all material that is discoverable under CPL §240.20, consenting to open file discovery of Defendant's file, and specifically responding to particular requests; rejects demand for open file discovery of the criminal court file on People v. Karen BenBen on the basis that it is an ongoing case for which Defendant can seek Freedom of Information Law copies once the case is closed;

5)providing some particulars and refusing to give others;

8)consenting to a Sandoval hearing; and

9)opposing any reservation for future motions because Defendant needs to show, and has not shown, good cause for making any further motion.

This court has considered Defendant's application, the People's opposition, Defendant's reply, the oral argument of the motion on August 8, 2007 by the People's and Defendant's attorneys, and the written submissions following oral argument by the People's and Defendant's attorneys. For the reason set forth below the Court:

a)grants Defendant's motion to preclude use of Defendant's statements in the [*3]People's case in chief but will permit People to use Defendant's statements as possible impeachment material, should Defendant testify on his own behalf;

b)denies Defendant's motion to preclude the People's use of Defendant's statements in People's opposition to Defendant's motion to suppress the handgun;

c)sets down a hearing forthwith as to Defendant's motion to Suppress the evidence of a handgun;

d)defers the decision on Defendant's request for Discovery, Bill of Particulars, and documents, pending the outcome of the suppression hearing;

e)directs the scheduling of the Sandoval Hearing, to which both parties consent, regarding admissibility of Defendant's record and any prior bad acts; and

f)denies Defendant's application to reserve possible future motions, but grants leave to make such a motion in the future upona showing a good cause.

BACKGROUND

Defendant and Karen BenBen lived together in an apartment at 405 Warburton Avenue, Hastings-on-Hudson, NY. On the day in question, December 30, 2006, Ms. BenBen and Defendant had a verbal argument and the Hastings-on-Hudson Police Department was contacted, according to the Police Report attached as Exhibit "C" to Defendant's motion papers.

Following the contact, the Police placed Ms. BenBen under arrest for assault in the second degree and placed Mr. Lancaster, Defendant herein, under arrest for criminal possession of a weapon under Penal Law §265.01. There has been no fact-finding hearing to date. Defendant-movant submitted motion papers with his attorney's affirmation and exhibits; the People submitted opposition papers consisting of an Attorney's affirmation and a memorandum of law.

Although there was no transcript provided, the People contend that three 911 telephone calls were placed to the HPD, and in the third of said calls a woman was heard stating that there was a man with a handgun in the house. Two officers were dispatched. Upon their arrival at the apartment building, they called for backup and proceeded to the fourth floor of the apartment building where they witnessed Ms. BenBen and Defendant exit the apartment, Ms. BenBen with a knife in her hand. The Police Report states Mr. Lancaster had a laceration in his back. Ms. BenBen then told the Police, according to the People's papers, that she felt she was in danger due to the gun being in the apartment. Then an exchange occurred between Defendant and Police, the details of which will not be set forth herein; the substance of said exchange is included in the [*4]People's §710.30 Notice.

Defendant was arraigned, beginning on December 30, 2006 and finishing on Wednesday January 3, 2007. People served a §710.30 notice of intent to use Defendant's statements by letter

to Defendant's counsel dated February 8, 2007, more than a month after the arraignment was completed [see Exhibit B to Defendant's motion papers].

Set forth below are three questions that the Court has considered in deciding this motion. Following the questions, the Court sets forth the conclusion that a hearing is necessary to establish the relevant facts herein.

FIRST QUESTION PRESENTED

Must Defendant's statements be precluded from use by the People on People's direct case?

CPL §710.30 requires that a notice of intent to use a defendant's statements be served within 15 days of the defendant's arraignment. The arraignment was concluded on January 3, 2007; the §710.30 Notice was served on February 8, 2007. Because People served their §710.30 notice more than thirty days after Defendant's arraignment, such statements are precluded from being introduced as part of People's case, CPL §710.30 (3). In their papers, the People reserve a right to use Defendant's statements to attempt to impeach Defendant in the event he testifies on his own behalf. Such impeachment use has been held to be appropriate, despite preclusion from use of a defendant's statements during People's direct case at trial, People v. John Doe, 179 AD2d 686, 579 NYS2d 423 (2nd Dept. 1992), People v. Nick Masullo, 158 AD2d 548, 551 NYS2d 317 (2nd Dept. 1990), People v. Ronald Connor, 157 AD2d 739, 740, 550 NYS2d 34 (2nd Dept. 1990); see also People v. Alexander, 2003 WL 21169075 (City Court, Poughkeepsie, 2003).

SECOND QUESTION PRESENTED

Must the People be precluded from using Defendant's statements in opposition to Defendant's motion to suppress the gun? Does the preclusion of People's use of Defendant's statements from their case in chief preclude the People from using such statements in opposing Defendant's motion to suppress the physical evidence, the gun, recovered from the apartment of Defendant and Ms. BenBen?

Defendant contends that, expect possibly for impeachment, preclusion should be for all purposes, including both People's case in chief as well as People's opposition to Defendant's motion to suppress. The People do not address this issue head-on but, rather, oppose the suppression motion claiming that the seizure was with Defendant's consent, relying upon statements that Defendant believes should be precluded. If Defendant is correct, then the [*5]statements upon which the People rely would not be before this Court and People's opposition would be without a foundation, as it relates to Defendant's statements.

Although there is a certain logic to Defendant's position, the Appellate Division Second Department, in People v. Doe, supra , considered the exact question and ruled that failure to comply with CPL §710.30 precludes use of a defendant's statements on the trial in chief but does not preclude their use in a hearing to determine the voluntariness of a defendant's consent to search his apartment. In People v. Doe the defendant had given his oral consent to search his apartment and subsequently was indicted and convicted of criminal possession of a controlled substance with respect to items found in the search of the apartment. The Doe defendant contended on appeal that he was not given proper notice under CPL §710.30 with respect to his oral consent to search his apartment and that, therefore, the testimony of what he said as well as the evidence to which such statements led all should be precluded. The Appellate Division ruled otherwise, holding:

We disagree. CPL 710.30 applies only to statements which the prosecution intends to offer on its direct case at trial (see, People v Goodson, 57 NY2d 828; People v Harris, 25 NY2d 175, 177, affd 401 US 222; People v Wilder, 124 AD2d 846, 847; People v Bowden, 104 AD2d 695, 696; People v Webb, 97 AD2d 779). Here the prosecutor indicated at the hearing that he did not intend to use the defendant's oral consent on his direct case at the trial, with the result that the contested statement does not fall within the ambit of CPL 710.30. In the case at bar, the only reason that this statement appears in the trial transcript is because the defendant stipulated to allow the hearing minutes to constitute the trial evidence. We note that the defendant received timely notice of the substance of the other statements allegedly made by him, including his written consent to search his apartment, and that he was given a full opportunity at the hearing to litigate the issue of whether the oral consent he gave on September 4, 1987, was voluntary (see, People v Bowden, supra , at 696). [emphasis supplied].

Thus, it is clear that a statement for which the People had not served a timely §710.30 notice nevertheless can be considered by the Court in determining the voluntariness of statements attributed to Defendant.

THIRD QUESTION PRESENTED

Could the Police seizure of the gun be justified as an exigent situation or as one completed with the consent of Ms. BenBen?

May the warrantless seizure be justified either because the circumstances were exigent and required immediate action or because someone else who lived in the apartment (Ms. BenBen) consented to the HPD entry? Of particular interest is the fact that, in their papers, the [*6]People contend that Ms. BenBen could be heard on the 911 tape regarding a man with a gun and that Ms. BenBen also stated upon the HPD officers' arrival, that she continued to fear for her safety. Did Ms. BenBen implicitly consent to the search of the apartment that she shared with Defendant? See People v. Cyprien 181 Misc 2d 978, 695 NYS2d 681 (Crim. Ct., NYC 1999) where a wife's complaint from outside her apartment of the behavior of her husband who was inside the apartment was held to be implicit consent for the police entry into the apartment and for the arrest of the husband; see also People v. James 2001 WL 856396 (Sup. Ct., N.Y.Co., 2001), where the court held that "The entry into the apartment by police was also proper in view of the implied consent given by Marilyn James pursuant to her 911 call. By dialing 911 for emergency medical aid, Ms. James impliedly consented to the subsequent entry by police into her home."

This court has attempted to resolve this issue of suppression of the physical evidence on the papers alone but has concluded that a hearing is necessary to establish clearly the relevant facts. Affirmations from the opposing attorneys are not adequate to establish fully the relevant facts. Only after a hearing will it be possible to determine the proper application of appropriate legal principles discussed above. Accordingly, this court sets the matter down for a hearing forthwith on the three issues remaining:

a)whether the circumstances (including the possibility that the evidence could be destroyed) were of sufficient exigency to justify a warrantless entry or were there other methods of securing the premises to prevent such destruction while a warrant was being sought?

b)whether Defendant consented to the search? If so, was his consent voluntary and was Defendant advised of his right to refuse to consent, see People v. Zimmerman, 101 AD2d 294, 475 NYS2d 127 (2d Dep't 1984)? Also, did the totality of the circumstances, even in the absence of one of the factors outlined in Zimmerman, above, provide the HPD with sufficient basis for concluding that Defendant consented to their entry into the apartment?

c)whether Ms. BenBen consented to the search and whether any such consent may be given [and was she still in reasonable fear?] in light of the apparent fact that both she and Defendant were outside the apartment at the time of their initial interaction with the HPD.

The Court defers the decisions on the discovery and Bill of Particulars issues pending the immediate hearing with respect to suppression of the physical evidence, the handgun. As to Defendant's reservation of possible future motions, the Court denies that application but grants Defendant the opportunity to make such a motion in the future provided Defendant satisfies the [*7]requirement that he show good cause for not having made the application within the statutory time requirements, CPL §255.20(3).

The foregoing constitutes the decision and order of this Court.

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JOSEPH A. DiSALVO,VJ

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