[*1]
People v Clark
2015 NY Slip Op 50459(U) [47 Misc 3d 1206(A)]
Decided on April 6, 2015
Criminal Court Of The City Of New York, Kings County
Johnson, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on April 6, 2015
Criminal Court of the City of New York, Kings County


The People of the State of New York,

against

Stanley Clark, Defendant.




2014KN014252
Laura R. Johnson, J.

Defendant was arraigned on the above docket on March 1, 2014, at which time the People served notice of a statement pursuant to CPL § 710.30(1)(a). The People subsequently withdrew that statement notice. On January 23, 2015, a date the case was before the court for hearings and trial, the People provided defendant with notice of a different statement that he allegedly made at the police precinct approximately 15 minutes after the time of occurrence as stated in the Information.

By motion dated February 13, 2015, defendant moves to preclude the People from offering any evidence regarding that statement, arguing that the notice is invalid, as it was provided outside the fifteen-day time frame prescribed in CPL § 710.30. On its face, the January statement notice includes a concession that it was not within the statutory fifteen day period. However, in their March 16, 2015 response to defendant's motion, the People indicate that they seek only to use the statement in question for purposes of impeachment, should the defendant choose to testify at trial. In anticipation of using the statement in this way, the People request that the Court hold a hearing as to the voluntariness of the statement.

The timing constraints of CPL § 710.30 apply only to statements which the prosecution intends to "offer at trial," that is, as part of its direct case (see People v Goodson, 57 NY2d 828 [1982]; People v Harris, 25 NY2d 175, 177 [1969], affd Harris v New York, 401 U.S. 222 [1971]; People v Rigo, 273 AD2d 258 [2d Dept 2000]; People v Doe, 179 AD2d 686 [2d Dept 1992]).

It is clearly "the better practice" for the People to provide the defendant with some prior notice of their intention to cross-examine him regarding prior statements he allegedly made to the police (People v Rudolph, 134 AD2d 539, 539-40 [2d Dept 1987]; see also People v Barrie, 74 AD2d 576, 577 [2d Dept 1980]; cf. People v Connor, 157 AD2d 739 [2d Dept 1990] [advance notice "waived" where defendant's testimony opened the door to admission of the statement]).

A statement may be used for impeachment purposes even where it is otherwise suppressed from use in the People's direct case due to late notice, Miranda violations, or right to counsel violations — provided only that the statement was voluntary, as that term is defined by CPL § 60.45 (People v Maerling, 64 NY2d 134, 140 [1984]; People v Ricco, 56 NY2d 320, 323, 326 [1982]; People v Padron, 134 AD2d 625 [2d Dept 1987]). People v Masullo, 158 AD2d 548, 549 (2d Dept 1990); People v Mathurine, 43 Misc 3d 222, 226 [Crim Ct Richmond County 2013]). Thus, there is no specific timing requirement for the People to give notice of such statements, as long as the defendant has an opportunity to contest their voluntariness.

Evidently aware that defendant will be entitled to a hearing if he claims that his statement [*2]was involuntary, "no matter what facts he puts forth in support of that claim" (People v Weaver, 49 NY2d 1012, 1013 [1980]; People v Bingham, 144 AD2d 682, 683 [2d Dept 1988]), the People have not waited for defendant to make the request, but have offered to hold a hearing, and have therefore assumed the burden of proving beyond a reasonable doubt that the statement in question was voluntarily made (People v Huntley, 15 NY2d 72, 78 [1965]).

In sum, the statement notice filed by the People prior to the commencement of trial satisfies their obligation to notify the defendant and allow him to strategize his defense accordingly. The defendant's motion is granted to the extent he seeks to preclude evidence of the statement on the People's direct case, and is otherwise denied. The People having offered, without a request by defendant, to conduct a hearing as to the voluntariness of defendant's statement, this Court orders that such hearing be held prior to defendant taking the stand at trial, should he choose to do so.

This constitutes the decision and order of the court.

DATED:April 6, 2015

Brooklyn, New York
Laura R. Johnson, J.C.C.