The People of the State of New York, Plaintiff, v Benjamin Simes, Defendant.

District Court of Nassau County, First District, February 7, 2018

Sperber & Stein, LLP for defendant in the first above-entitled action.

Brill Legal Group, P.C. for defendant in the second above-entitled action.

Madeline Singas, District Attorney, for plaintiff in the first and second above-entitled actions.

The defendants move by identical papers (save for the captions, the names of the affirmants and the names of the defendants listed in paragraph 1) to reopen the Huntley/Dunaway hearing based upon the discovery of "exculpatory evidence" which the defendants claim raises significant issues regarding the probable cause for the arrest. No other relief is requested.

The District Attorney opposes the motion arguing there is no basis to reopen the hearing.

The "exculpatory evidence" raised by the defendants consists of discovery provided the day after the conclusion of the hearing. The discovery provided included medical records of the complainant and screenshots of text messages between individuals who witnessed and participated in the incident, best described as a brawl, during a New Year's Eve party in which the complainant is alleged to have suffered fractured orbital and nasal bones.

The court, prior to issuing the decision, received a letter from the defendants alerting the court that discovery had been received after the hearing and that reopening of the hearing was sought. The decision on the suppression hearing addressed the issue of reopening the hearing in the initial decision. The basis for denying the initial request bears repeating.

The suppression hearing took place to address the question of whether the statements of the defendant were made voluntarily as defined by CPL 60.45 and made in accordance with the mandates of Miranda v Arizona (384 US 436 [1966]). The hearing is generally called a Huntley hearing or a Huntley/Dunaway hearing when the issue of probable cause for the arrest is challenged which would require suppression of the statement. Here, even though the label Huntley/Dunaway was the stated scope of the hearing, the question of whether probable cause existed for the arrest was not in question because no statement occurred after the arrest.{**59 Misc 3d at 836}

CPL 710.20 sets forth the grounds for suppression of evidence, namely tangible property obtained by an illegal search, illegal communications, improper video surveillance, statements made involuntarily under CPL 60.45, chemical tests not conforming to Vehicle and Traffic Law § 1194, or an identification made improperly. The statute does not permit a hearing to solely determine whether probable cause existed.

Elsewhere in the CPL, provisions for dismissal exist, depending on the type of crime charged, misdemeanor or felony. Under CPL 180.70 (4) dismissal is permitted when reasonable cause to believe the defendant committed any offense does not exist following a felony hearing held pursuant to CPL 180.20.

There is no comparable statute for a hearing to determine whether reasonable cause exists upon the filing of a misdemeanor complaint (see CPL 170.30, 170.35). Procedures do exist to allow for judicial review of the sufficiency of an information upon which a defendant may be charged (CPL 170.35 [1] [a]; [2]).

The initial hearing in this case only dealt with the admissibility of the statements made. This court found the statements to be admissible since the statements were not made involuntarily under CPL 60.45 (2). The statements made occurred during the investigation and before an arrest. Therefore, the question of whether the statements were made following an arrest without sufficient cause (Dunaway v New York, 442 US 200 [1979]) does not exist. The claim that a challenge may be made based upon the discovery provided by the District Attorney as to the basis for the arrest goes to the sufficiency of the evidence which is not grounds to dismiss (People v Ryan, 23 Misc 3d 130[A], 2009 NY Slip Op 50661[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2009]; People v Lewis, 23 Misc 3d 49 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; People v Asher, 16 Misc 3d 89 [App Term, 2d Dept, 9th & 10th Jud Dists 2007]). The sufficiency of the evidence is a matter for trial.

While the defendants claim prejudice and the inability to confront the arresting detective with statements suggesting that other or additional people were involved in the attack or that the [*3]complainant described the incident in a manner to suggest no one struck him in the face or that the complainant was attacked by different people, that does not infringe upon the ability to use the information during the hearing. The hearing was limited to the determination of whether the statements made were admissible on trial.{**59 Misc 3d at 837}

At common law, courts had no power to order discovery in criminal cases. (People v Colavito, 87 NY2d 423 [1996].) There is also no federal or state constitutional right to discovery. (Weatherford v Bursey, 429 US 545, 559 [1977]; Matter of Miller v Schwartz, 72 NY2d 869, 870 [1988].) The New York Legislature has taken into account values "premised on constitutional rights and fundamental fairness," and adopted article 240 of the Criminal Procedure Law which, by specifying what exactly is discoverable prior to a criminal trial, essentially excludes items not mentioned from discovery. (People v Colavito, 87 NY2d at 427.)

Since there is no constitutional right to discovery in criminal cases, courts cannot require discovery where no statutory basis exists (Matter of Sacket v Bartlett, 241 AD2d 97, 101 [3d Dept 1998]; Matter of Pirro v LaCava, 230 AD2d 909, 910 [2d Dept 1996]). Thus, discovery in criminal proceedings is entirely governed by statute. (People v Copicotto, 50 NY2d 222, 225 [1980]; Matter of Hynes v Cirigliano, 180 AD2d 659 [2d Dept 1992].)

Without addressing whether the material is exculpatory, the People turned over the material upon obtaining it. The People have not deprived the defendants of a meaningful opportunity to use the exculpatory material (People v Gonzalez, 89 AD3d 1443 [4th Dept 2011]; People v Green, 74 AD3d 1899 [4th Dept 2010]). The defendants will be able to employ the materials turned over in discovery at trial.

Since the defendants have failed to demonstrate any facts which would alter the determination of the motion to suppress or have uncovered additional pertinent facts on the issue of suppression of the statements, the application by both of the defendants is denied. (CPL 710.40 [4]; People v Clark, 88 NY2d 552 [1996]; People v Moore, 118 AD3d 916 [2d Dept 2014].)