Opinion
Indictment No. 70252/2021
06-01-2022
The PEOPLE of the State of New York, v. Victor CORSARO, Defendant.
Honorable Michael E. McMahon, District Attorney, Richmond County, by: Assistant District Attorney Jeanine Ruggiero, 130 Stuyvesant Place, Staten Island, New York 10301, (718) 697-8306, Jeanine.Ruggiero@rcda.nyc.gov, for plaintiff. To: Eliza Pacheco, Esq., The Legal Aid Society, Criminal Defense Practice, 60 Bay Street, 3rd floor, Staten Island, New York 10301, (646) 946-2139, Epacheco@legal-aid.org, for defendant.
Honorable Michael E. McMahon, District Attorney, Richmond County, by: Assistant District Attorney Jeanine Ruggiero, 130 Stuyvesant Place, Staten Island, New York 10301, (718) 697-8306, Jeanine.Ruggiero@rcda.nyc.gov, for plaintiff.
To: Eliza Pacheco, Esq., The Legal Aid Society, Criminal Defense Practice, 60 Bay Street, 3rd floor, Staten Island, New York 10301, (646) 946-2139, Epacheco@legal-aid.org, for defendant.
Mario F. Mattei, J.
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.
BACKGROUND
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.
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 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 motions 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.
FACTS
On August 2, 2021, Detective Leonard Mormino was assigned to investigate an allegation involving charges involving a domestic burglary. The defendant was identified as the suspect. On August 3, 2021, the defendant was taken into custody in the 121 Precinct pursuant to an I-card issued by Mormino. He was brought before Lieutenant McGinness at the front desk of the 123 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 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. 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.
PRECLUSION OF THE UNNOTICED STATEMENT IS GRANTED
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 "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 A.D.3d 1264, 987 N.Y.S.2d 537 [4th Dept. 2014], lv denied 24 N.Y.3d 1083, 1 N.Y.S.3d 9, 25 N.E.3d 346 [2014] [citing People v. Dean , 299 A.D.2d 892, 893, 750 N.Y.S.2d 207 [4th Dept. 2002], lv denied 99 N.Y.2d 613, 757 N.Y.S.2d 824, 787 N.E.2d 1170 [2003] ; see People v. Garcia , 290 AD2d 299, 300, 735 N.Y.S.2d 545 [1st Dept. 2002], lv denied 98 N.Y.2d 730, 749 N.Y.S.2d 480, 779 N.E.2d 191 [2002] ; People v. Rodriguez , 21 A.D.3d 1400, 804 N.Y.S.2d 160 [4th Dept. 2005] ; People v. Griffin , 12 A.D.3d 458, 459, 783 N.Y.S.2d 847 [2d Dept. 2004], lv denied 4 N.Y.3d 886, 798 N.Y.S.2d 732, 831 N.E.2d 977 [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 A.D.2d 700, 701, 728 N.Y.S.2d 100 [3d Dept. 2001] ; see People v. Lazzaro , 62 A.D.3d 1035, 877 N.Y.S.2d 764 [3d Dept. 2009] ; People v. Dean , 299 A.D.2d 892, 750 N.Y.S.2d 207 [4th Dept. 2002] ; People v. Griffin , 12 A.D.3d 458, 783 N.Y.S.2d 847 [2d Dept. 2004] ; People v. Garcia , 290 A.D.2d 299, 735 N.Y.S.2d 545 [4th Dept. 2002], lv denied 98 N.Y.2d 730, 749 N.Y.S.2d 480, 779 N.E.2d 191 [2002] ; People v. Coleman , 256 A.D.2d 473, 682 N.Y.S.2d 402 [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 . 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 the defendant that the People intend to offer evidence of a statement made to a public officer at trial so that a timely motion to suppress the evidence may be made" ( People v. Rodney, 85 N.Y.2d 289, 624 N.Y.S.2d 95, 648 N.E.2d 471 [1995] ).
An excellent explanation of the law and procedures regarding notice requirements is contained in New York Confessions, § 7.09 [2020 edition] by the Honorable John Joseph Brunetti.
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 A.D.2d 35, 559 N.Y.S.2d 697 [1st Dept. 1990], lv denied 76 N.Y.2d 990, 563 N.Y.S.2d 779, 565 N.E.2d 528 [1990] ). Thus, if the statute is to have any meaning at all, unnoticed, unchallenged evidence must be precluded (see, People v. O'Doherty , 70 N.Y.2d 479, 522 N.Y.S.2d 498, 517 N.E.2d 213 [1987] ; People v. Mullins , 179 A.D.2d 48, 582 N.Y.S.2d 810 [3d Dept. 1992] ), even where the evidence was lawfully obtained and the defendant suffered no prejudice ( People v. Miles , 163 A.D.2d 330, 557 N.Y.S.2d 163 [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 N.Y.2d 289, 624 N.Y.S.2d 95, 648 N.E.2d 471 [1995] ), "even if the statement later proves to be inculpatory" ( People v. Slade , 133 A.D.3d 1203, 20 N.Y.S.3d 763 [4th Dept. 2013], lv denied 26 N.Y.3d 1150, 32 N.Y.S.3d 64, 51 N.E.3d 575 [2016] ).
Therefore, the unnoticed statement made by the defendant will be precluded except for pedigree information contained therein.
SUPPRESSION OF THE NOTICED STATEMENT IS DENIED
The defendant was in custody when he made the statements to Detective Mormino in the 123 Precinct Detective Squad after his own inquiry regarding why he was arrested.
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 A.D.2d 607, 714 N.Y.S.2d 839 [3d Dept. 2000], lv denied 95 N.Y.2d 970, 722 N.Y.S.2d 488, 745 N.E.2d 408 [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 A.D.3d 623, 766 N.Y.S.2d 266 [3d Dept. 2003], quoting Sturdivant , supra . ; People v. Higgins , 124 A.D.3d 929, 1 N.Y.S.3d 424 [3d Dept. 2015] ). CONCLUSION
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.
This shall constitute the decision and order of the Court.