Supreme Court, Richmond County, June 1, 2022

The Legal Aid Society, Criminal Defense Practice, Staten Island (Eliza Pacheco of counsel), for defendant.

Michael E. McMahon, District Attorney, Staten Island (Jeanine Ruggiero of counsel), for plaintiff.

The main issues before the court are whether statements made by the defendant should be precluded for a lack of notice, and if they are not, whether the People have shown beyond a reasonable doubt that the statements were voluntarily made.

The defendant is charged with burglary in the second degree (Penal Law § 140.25 [2]) and other charges.

The People filed an initial disclosure form (IDF) on August 24, 2021. The IDF gave notice pursuant to CPL 710.30 of one statement allegedly made by the defendant. [*2]

The defendant moved to suppress "all properly noticed statements."

A Huntley hearing was ordered.

Immediately prior to the commencement of the hearing, the court inquired about the scope of the hearing. The prosecutor indicated that the People were seeking to use "both" statements listed in the IDF.

The defendant's attorney objected, indicating that the defendant's IDF only contained one noticed statement. The{**76 Misc 3d at 849} prosecutor produced a copy of an IDF which contained two noticed statements. The IDF in the court file was identical to the defendant's IDF. It was apparent that the IDF filed with the court, and served on the defendant, was an initial draft, and that the second IDF containing both statements had not been served or filed.

The defendant's attorney moved to preclude the unnoticed statement and indicated that she would not be questioning the witness about it.

The hearing proceeded and the People elicited both the noticed and unnoticed statements on their direct case. Detective Leonard Mormino testified for the People.

The court finds the witness and his testimony credible.

The defendant's motion to preclude is granted as to the unnoticed statement, as explained herein; suppression is denied as to the noticed statement.

This decision contains the court's findings of fact and rulings on the law.

On August 2, 2021, Detective Leonard Mormino was assigned to investigate an allegation involving a domestic burglary. The defendant was identified as the suspect. On August 3, 2021, the defendant was taken into custody in the 121st Precinct pursuant to an I-card issued by Mormino. He was brought before Lieutenant McGinness at the front desk of the 123rd Precinct and formally arrested at approximately 8:45 a.m. The appearance at the front desk was captured by the lieutenant's body-worn camera and played for the court. The defendant was engaging and very talkative. The officers asked him for his pedigree information. The defendant supplied his pedigree information and without any prompting, much more. The defendant spoke about how he was the father of the child and that this arrest was illegal.

The defendant was brought up to the detective squad room. He was asked if he would like to make a statement. He said that he did not want to make a statement and that he wanted a lawyer. The defendant then asked what he was being arrested for. The detective told him "Burglary." The defendant responded in sum and substance that he had a key to the home, the door was open, he went in, and he took the phone.

The defendant was not advised of his Miranda rights. There is no evidence before the court that the defendant was threatened or promised anything to make either statement.{**76 Misc 3d at 850}

The People provided notice of the second statement which took place in the detective squad room. Due to an apparent administrative error, the first statement at the desk was not noticed.

[1] Generally, when a defendant moves to suppress or preclude all statements, the lack of notice for any unnoticed statements is waived so long as the defendant has the opportunity to challenge the voluntariness of the unnoticed statements. Under those circumstances, when a witness testifies to a noticed and unnoticed statement at a Huntley hearing, the defendant waives[*3]"preclusion on the ground of lack of notice because [he] was given a full opportunity to be heard on the voluntariness of that statement" (People v Davis, 118 AD3d 1264, 1266 [4th Dept 2014], lv denied 24 NY3d 1083 [2014], citing People v Dean, 299 AD2d 892, 893 [4th Dept 2002], lv denied 99 NY2d 613 [2003]; see People v Garcia, 290 AD2d 299, 300 [1st Dept 2002], lv denied 98 NY2d 730 [2002]; People v Rodriguez, 21 AD3d 1400 [4th Dept 2005]; People v Griffin, 12 AD3d 458, 459 [2d Dept 2004], lv denied 4 NY3d 886 [2005]).

The opportunity to challenge the statement by examining a witness, not the actual challenge, is the key. Thus, "[w]hile defense counsel may have chosen not to inquire into the content of the statement for tactical reasons, there can be no doubt that the intent and purpose of the statute was fully satisfied here when defendant was provided an opportunity to challenge the admissibility of the statement" (People v Brown, 281 AD2d 700, 701 [3d Dept 2001]; see People v Lazzaro, 62 AD3d 1035 [3d Dept 2009]; People v Dean, 299 AD2d 892 [4th Dept 2002]; People v Griffin, 12 AD3d 458 [2d Dept 2004]; People v Garcia, 290 AD2d 299 [1st Dept 2002], lv denied 98 NY2d 730 [2002]; People v Coleman, 256 AD2d 473 [1998]).

This can present the defendant's attorney with the unenviable Hobson's choice of either forgoing the preclusion issue by taking part in the hearing or waiving the hearing.^[FN*] This rule, when the defendant moves to suppress "all statements," is consistent with the statute since the "purpose of CPL 710.30 is to inform a defendant that the People intend to offer evidence of a statement made to a public officer at trial so that a timely{**76 Misc 3d at 851} motion to suppress the evidence may be made" (People v Rodney, 85 NY2d 289, 291-292 [1995]).

However, the rule is not consistent with the statute when a defendant does not move to suppress specific unnoticed evidence. CPL 710.30 (3) states

"[i]n the absence of service of notice upon a defendant as prescribed in this section, no evidence of a kind specified in subdivision one may be received against him upon trial unless he has, despite the lack of such notice, moved to suppress such evidence and such motion has been denied and the evidence thereby rendered admissible as prescribed in subdivision two of section 710.70."

Allowing unnoticed evidence which the defendant did not move to suppress to be admitted against him at trial runs counter to the purpose of the statute and actually obviates the need for a notice statute.

"Clearly, the purpose of this law is to authorize admission of evidence in a situation in which a defendant is, in fact, already cognizant of the statement(s) which the People intend to use; it is not to enable the prosecution to escape from being penalized even in connection with statement(s) concerning which an accused, as occurred herein, possess no prior knowledge and of whose existence he does not learn until immediately before the commencement of the hearing or while it is in progress . . . To construe the statute otherwise would, as the Court of Appeals noted in People v O'Doherty . . . virtually eviscerate the 15-day-notice requirements in any case in which a hearing is subsequently held" (People v St. Martine, 160 AD2d 35, 40 [1st Dept 1990], lv denied 76 NY2d 990 [1990]).

Thus, if the statute is to have any meaning at all, unnoticed, unchallenged evidence must be precluded (see People v O'Doherty, 70 NY2d 479 [1987]; People v Mullins, 179 AD2d 48 [3d Dept 1992]), even where the evidence was lawfully obtained and the defendant suffered no prejudice (People v Miles, 163 [*4]AD2d 330 [2d Dept 1990]).

Part of the unnoticed statement contained pedigree information. The People are not required to provide a notice pursuant to CPL 710.30 of their intention to offer pedigree information at trial (People v Rodney, 85 NY2d 289 [1995]), "even if the statement later proves to be inculpatory" (People v Slade, 133{**76 Misc 3d at 852} AD3d 1203, 1206 [4th Dept 2015], lv denied 26 NY3d 1150 [2016]).

Therefore, the unnoticed statement made by the defendant will be precluded except for pedigree information contained therein.

The defendant was in custody when he made the statements to Detective Mormino in the 123rd Precinct detective squad room after his own inquiry regarding why he was arrested.

[2] This "query concerning the grounds for his arrest was met by a brief and innocuous response from police authorities." Although defendant's right to counsel had attached, and the defendant was not Mirandized, the statements are admissible since "it is clear that he was neither induced nor provoked to make a statement" (People v Sturdivant, 277 AD2d 607, 608 [3d Dept 2000], lv denied 95 NY2d 970 [2000]).

The defendant's proposition that the police were mandated to advise him of his Miranda rights because he was so talkative is not persuasive; in actuality, the law provides for the opposite—"the police are not required to silence a chatterbox" (People v Taylor, 1 AD3d 623, 624 [3d Dept 2003] [internal quotation marks and brackets omitted], quoting Sturdivant; People v Higgins, 124 AD3d 929 [3d Dept 2015]).

The People were required to provide notice of the statement made by the defendant at the front desk of the precinct; they failed to do so; the defendant's second statement was properly noticed and was voluntarily made. Accordingly, it is hereby ordered, the defendant's motion to preclude the unnoticed statement, other than pedigree information contained therein, is granted; and it is further ordered that the defendant's motion to suppress the noticed statement is denied.