The defense moves to preclude various statements in this case that the prosecution elicited at a Huntley hearing, but which were not the subject of any C.P.L. § 710.30[1][a] notice. The prosecution opposes. Upon review of the papers, the motion is granted to the extent explained in this decision.

The prosecution filed notice under C.P.L. § 710.30 of one statement that they intend to elicit at trial: in sum and substance, "I HIT A CAR OK NO PROBLEM." (Pr. Resp. Ex. A).

Under C.P.L. § 710.30[1][a], "[w]henever the people intend to offer at a trial ... evidence of a statement made by a defendant to a public servant, which statement if involuntarily made would render the evidence thereof suppressible upon motion pursuant to subdivision three of section 710.20, ... they must serve upon the defendant a notice of such intention, specifying the evidence intended to be offered."

While the prosecution need not provide a notice that recounts all such statements verbatim, the statements must be "described sufficiently so that the defendant can intelligently identify them." (People v. Lopez, 84 NY2d 425, 428 [1994]). Thus, statements made at "a different time and place, and under different circumstances, than the noticed statement" cannot be lumped together with the noticed statement. (People v. Urbina, 78 Misc 3d 1209[A], at *3 [Crim. Ct., Queens County 2023]; see also People v. Rhames, 58 Misc 3d 1231[A] [City Ct., Mount Vernon 2018] [holding that notice of statements made "while being transported" to a police station did not cover statements made at the scene of arrest]; People v. Utria, 165 Misc 2d 54 [Crim. Ct., Queens County 1995] [holding that the notice of statements "made to IDTU personnel" at a police precinct did not cover statements made to the arresting officer at the scene]). Moreover, where the prosecution's notice lists a statement that is "considerably less inculpatory" than the full statement they intend introduce at trial, the more incriminating parts [*2]should be precluded. (See People v. Smith, 138 AD3d 628, 629 [1st Dep't 2016]; People v. Thomas, 20 Misc 3d 1108[A], at *9 [Sup. Ct., Bronx County 2008] ["While a notice need not contain a verbatim report of defendant's oral statement, failure to include a significant admission renders the notice deficient to the extent of the omission."]). In either situation, the prosecution has failed to "specify[] the evidence intended to be offered." (C.P.L. § 710.30[1][a]).

At the outset, the prosecution here misunderstands the notice statute. They argue that the defense waived their right to preclusion because the unnoticed statements were elicited at the hearing and depicted on the body-worn camera video that was introduced. But such a "waiver" only occurs "when the defendant moves to suppress 'all statements,'" (see People v. Corsaro, 76 Misc 3d 847, 850 [Sup. Ct., Richmond County 2022] [emphasis added]), not when the defense only moves to suppress properly noticed statements. All the cases cited by the prosecution are examples where the defense moved to suppress the statements they sought to preclude. (See People v. Merrill, 87 NY2d 948 [1996] [in which the defense had moved, in the alternative, to suppress the statements they sought to preclude]; People v. Lazzaro, 62 AD3d 1035 [3d Dep't 2009] ["[T]he statements were admissible against defendant because he moved to suppress his statements."]; People v. Martinez, 9 AD3d 679 [3d Dep't 2004] ["Here, defendant moved to suppress all statements made by him."] [emphasis added]). However, when the defense does not move to suppress the unnoticed evidence—as the defense made clear in its moving papers here ^[FN1] —then their preclusion claim is not waived. "[W]hen a defendant moves to suppress particular statement[s] and then procures a ruling from the court [he may be] deemed to waive the fifteen day notice requirement as to those statements only." (People v. St. Martine, 160 AD2d 35, 42 [1st Dep't 1990] [emphasis added]). "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." (Corsaro, 76 Misc 3d at 851).

At bottom, the prosecution conflates notice that statements were made with notice that the prosecution intends to use those statements at trial. The mere fact that some statements happened does not mean that the prosecution intends to use them. "Clearly, the purpose of [C.P.L. § 710.30[3]] 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." (St. Martine, 160 AD2d at 40 [emphasis added]). This is why, for instance, inadequate notice cannot be cured by discovery. (See generally Lopez, 84 NY2d 425). "The clear language of the statute imposes on the People the obligation not only to inform the defendant of the statements but also of their intent to use them at trial." (People v. Calise, 167 Misc 2d 277 [Crim. Ct., Bronx County 1996]). "Thus, if the statute is to have any meaning at all, unnoticed, unchallenged evidence must be precluded." (People v. O'Doherty, 70 NY2d 479 [1987]).

Here, there are three groups of statements made under entirely different circumstances from that of the noticed statement: first, statements made after Mr. Jones was handcuffed and while he was at the scene of the arrest; second, statements made while the police transported Mr. Jones to the police precinct; and third, statements made while Mr. Jones was at the police [*3]precinct. As noted earlier, statements made at "a different time and place, and under different circumstances, than the noticed statement" cannot be lumped together with the noticed statement. (Urbina, 78 Misc 3d 1209[A], at *3). Thus, these three groups of statements by Mr. Jones are precluded from trial.^[FN2]

Moreover, the prosecution's statement notice cannot be said to cover statements made by Mr. Jones relating to his drinking. The statement notice refers only to driving; however, an additional admission of drinking alcohol is "significant." (See Thomas, 20 Misc 3d 1108[A], at *9). Indeed, the consumption of alcohol is the other half of driving while impaired (or intoxicated)—and it's the factor that can make the act of driving a violation of the law. Because the statement notice fails to include any mention of consuming alcohol, it fails to "specify[]," (C.P.L. § 710.30[1][a]), that the prosecution intends to introduce any statements relating to drinking at trial. Accordingly, statements by Mr. Jones relating to drinking alcohol are precluded from trial.

A couple qualifications are necessary. First, notwithstanding the above holdings, so-called "pedigree" statements are not precluded. (People v. Vaccarella, 177 AD2d 990 [4th Dep't 1991]). Second, the refusal to take the chemical test is not precluded. (People v. Peeso, 266 AD2d 716 [3d Dep't 1999]).

The foregoing constitutes the order and decision of the court.