Opinion
2019BX001866
07-02-2019
The PEOPLE of the State of New York, Plaintiff, v. Rex CUNNINGHAM, Defendant.
ADA Levi Stoep, Bronx County District Attorney's Office Mr. Nathan Karnovsky, Esq., The Bronx Defenders, for Defendant
ADA Levi Stoep, Bronx County District Attorney's Office
Mr. Nathan Karnovsky, Esq., The Bronx Defenders, for Defendant
Jeffrey M. Zimmerman, J. Defendant Rex Cunningham was arrested with his brother on January 21, 2019 for allegedly assaulting the complaining witness. After his arraignment the following day, January 22, 2019, the People filed with the Court and mailed to defense counsel a written notice of their intent to use the defendant's statement made to Police Officer Garcia. The notice was dated and filed with the court on February 6, 2019. However, the service copy to defense counsel was not postmarked until February 7. The defendant claims that his statement contained in the notice must be precluded as the notice was not served within fifteen days of his arraignment as required by CPL § 710.30 (1) (a). The People oppose, arguing that the notice was deposited into a mailbox on the fifteenth day, which was February 6, 2019, and that such mailing constituted adequate and timely service under the statute.
The Court has reviewed the defendant's moving papers, the People's response, documents contained in the court file, and relevant case law. Having carefully considered the issue, the Court concludes that the defendant was "served" when the People placed the written statement notice in the postal mailbox. As the People served the defendant within fifteen days from the defendant's arraignment, the notice was timely. Accordingly, the Court DENIES the defendant's motion to preclude.
DISCUSSION
When the People intend to use at trial a statement made by the defendant to a public servant, they must give notice of such intent to the defendant and specify the evidence they intend to offer ( CPL § 710.30 [1 ] [a] ). To satisfy the People's obligation under the statute, they are "required to inform defendant of the time and place the oral or written statements were made and of the sum and substance of those statements" ( People v. Lopez , 84 N.Y.2d 425, 428, 618 N.Y.S.2d 879, 643 N.E.2d 501 [1994] ).
The People's notice "must be served within fifteen days after arraignment and before trial" ( CPL § 710.30 [2 ] ). The Legislature chose a "narrow 15-day time requirement to enable ‘the orderly, swift and efficient determination of pretrial motions’ " ( Lopez , at 429, 618 N.Y.S.2d 879, 643 N.E.2d 501, citing People v. O'Doherty , 70 N.Y.2d 479, 488, 522 N.Y.S.2d 498, 517 N.E.2d 213 [1987] ). CPL § 710.30 also provides that the defendant must be given a reasonable opportunity to move for suppression of the evidence before trial ( id. ). The statute was enacted to "facilitate a defendant's opportunity to challenge before trial the voluntariness of statements made by him" ( Lopez , at 428, 618 N.Y.S.2d 879, 643 N.E.2d 501 ). The failure by the People to give timely notice results in preclusion of evidence ( id. ["The statutory remedy for the People's failure to comply with the statute is preclusion"]; O'Doherty , supra [same] ). Whether the defendant suffered any "prejudice plays no part in the analysis" ( id. ). The relevant statutes — and the Criminal Procedure Law ("CPL") in general — are silent as to what constitutes adequate service.
In this case, the facts are undisputed. The defendant was arraigned on January 22, 2019. The People mailed a written statement notice to defense counsel off-calendar. The notice was dated February 6, 2019 and filed in court the same day. The service copy was placed in a U.S. Postal Service mailbox on February 6, 2019 but was not postmarked until February 7, 2019, and was received by defense counsel at some point on or after that day. Both sides agree that if the notice was "served" on February 6, 2019, it would have been on the fifteenth day from the arraignment and timely. On the other hand, if it was "served" on February 7, 2019, it would have been untimely, and the statement would be precluded. Thus, the question presented to the Court is what constitutes adequate "service" under CPL § 710.30 (1) (a). Is "service" completed at the time the notice is placed in the mailbox? Or is it completed at some subsequent time such as the date of the postmark or the actual receipt by defense counsel?
The People also argue that in the event the Court determines that service was not effective until February 7, there was good cause for the People's tardiness. Because the Court finds that service was effective on February 6, it need not address the People's good cause argument.
The Court finds Judge Gorenstein's decision in People v. Godoy , 180 Misc. 2d 771, 698 N.Y.S.2d 390 (Crim. Ct., N.Y. County 1999) to be well-reasoned and persuasive authority on this issue. In that case, the defendant was arraigned on February 7, 1999. The People mailed a timely statement notice off-calendar on February 16, 1999, but it was never received by defense counsel. The notice was filed with the court on February 17, 1999. The defendant asked for preclusion on the grounds that the notice was not timely served under CPL § 710.30 (1) (a).
It was later realized that the notice was never received by defense counsel because the People erroneously omitted the counsel's suite number in the address.
In determining the defendant's motion, the court first noted that the CPL does not define what constitutes "service" ( id. at 773, 698 N.Y.S.2d 390 ). While "the CPLR ["Civil Practice Law and Rules"] has no application to criminal actions and proceedings," ( People v. Silva , 122 A.D.2d 750, 750, 506 N.Y.S.2d 55 [1st Dept. 1986] ; People v. Crisp , 268 A.D.2d 247, 700 N.Y.S.2d 693 [1st Dept. 2000] ), the court further found that criminal courts have often looked to provisions in the CPLR for guidance when the CPL is silent ( Godoy , supra , at 733, 698 N.Y.S.2d 390, citing People v. Fulton , 162 Misc. 2d 360, 363 n. 3, 616 N.Y.S.2d 881 [Sup. Ct., Monroe County 1994] ; People v. Duquette , 152 Misc. 2d 239, 575 N.Y.S.2d 649 [St. Lawrence City Court 1991] ; but see People v. Kyriazas , 2002 N.Y. Slip Op. 40561[U], 2002 WL 31972172 [Sup. Ct., Westchester County 2002] [refusing to follow Fulton , supra , and Duquette, supra ]; People v. DeFreitas , 48 Misc. 3d 569, 9 N.Y.S.3d 822 [Crim. Ct., N.Y. County 2015] [CPLR rules surrounding motions to reargue do not apply in criminal cases] ).
The court then noted that under the CPLR, "papers to be served upon a party in a pending action shall be served upon the party's attorney" ( CPLR § 2103 [b] ). One of the accepted methods of service upon an attorney is "by mailing the paper to the attorney at the address designated by that attorney for that purpose" ( CPLR § 2103 [b] [2] ). The statute further states that "service by mail shall be complete upon mailing" (id. ). Thus, pursuant to CPLR § 2103, the court held that service was completed when the People mailed the notice to defense counsel. Because the People fulfilled their obligation under the statute when the notice was mailed, the court further concluded that the subsequent nonreceipt by the defense counsel was of little "significance" in evaluating the timeliness of the service under CPL § 710.30 (1) (a) ( Godoy , at 774, 698 N.Y.S.2d 390 ).
The court held that the omission of the suite number from the defense counsel's address did "not necessarily mean that service was improper" because the "United States Postal Service delivers to addresses regardless of whether an apartment or suite number is included in the address" (Godoy , at 774, 698 N.Y.S.2d 390 ). Additionally, the court noted that the People attempted to inform defendant's counsel of the statement notice at the February 22 calendar call, a date that occurred within the statutory time period, but defense counsel did not appear for the calendar call. Finally, the substance of the statement notice was provided to defense counsel in connection with the briefing of the defendant's motion to preclude.
The Court agrees with Godoy that the CPLR provides an operative framework to measure when statement notice is served. Under CPLR § 2103, the statement notice in this case was "served" when it was "mailed." However, the question still remains: When was the notice "mailed"? Was it when the notice was placed in the mailbox or when it was postmarked?
CPLR § 2103 (f) (1) is again instructive. It defines "mailing" to be "the deposit of a paper enclosed in a first class postpaid wrapper, addressed to the address designated by a person for that purpose or, if none is designated, at that person's last known address, in a post office or official depository under the exclusive care and custody of the United States Postal Service within the United States" (id. ). In this case, an affidavit was prepared and signed by a Bronx County District Attorney's Office's case aide. The affidavit provides that the case aide "served" the notice on the defense counsel on February 6, 2019 "by enclosing [the notice] in a securely sealed post-paid wrapper addressed [to the defense attorney] and depositing same in the post office box regularly maintained by the United States Government located at 198 East 161st Street, Bronx, New York" (Affidavit of Service by Mail). Thus, the record demonstrates that the notice was placed into a postal mailbox on February 6, 2019. The Court holds that the notice was "mailed" on that date; and the People's obligation under CPL § 710.30 (1) (a) was satisfied.
The Court understands that the service rules of the CPLR are not automatically applicable to criminal cases. In People v. Crisp , supra , the First Department determined that a notice of the defendant's request to testify in the grand jury under CPL § 190.50 (5) (a) was "served" not upon mailing, but when it was actually received by the prosecutor. CPL § 190.50 (5) (a) provides that a defendant must "serve[ ] upon the district attorney of the county a written notice making [the request to testify] and stating an address to which communications may be sent" ( CPL § 190.50 [5 ] [a] ). When the notice is "service[d] upon the district attorney," the prosecutor's requirements to "notify the foreman of the grand jury" and to "serve upon the applicant ... a notice that he will be heard by the grand jury at a given time and place" are triggered ( CPL § 190.50 [5 ] [b] ). Under this statutory framework, the Crisp Court determined that "[i]f service of the notice requesting to appear were complete upon mailing rather than upon receipt, the District Attorney would be unable to fulfill his statutory obligations" because "he becomes aware of the defendant's request to appear not when the request is mailed, but only when it is received" ( People v. Crisp , 246 A.D.2d 84, 86, 677 N.Y.S.2d 356 [1st Dept. 1998] ). Therefore, "the notice of intent to testify should be deemed timely served only if the People actually receive it before the filing of the indictment since the receipt of such notice triggers reciprocal obligations on the prosecutor's part that cannot be fulfilled without actual notice of such intent" ( id. ). The court further concluded that this interpretation would also deter gamesmanship by defense counsel. If service was completed at the time of the mailing, the court reasoned, the defense attorney would "need only mail the notice of intent to testify just before the expiration of the five-day period. He could then use the People's resulting failure to serve the reciprocal notice as a ground to dismiss the indictment, thereby obtaining a second review of the charges by another grand jury" ( id. ).
The concerns present in Crisp — such as the prosecutor's ability to fulfill his or her obligations and the need to deter gamesmanship by the lawyers — are non-existent with CPL § 710.30 (1) (a) notices. To begin, CPL § 190.50 requires a timely response from the opposing counsel to notify the foreman of the grand jury of the defendant's request to testify. The failure by the prosecutor would result in dismissal of the indictment ( CPL § 190.50 [5 ] [c] ). On the other hand, CPL § 710.30 (1) (a) does not impose any obligations on the opposing counsel. The decision to move for suppression of the evidence upon receipt of the notice is neither automatic nor obligatory. Moreover, in order to fulfill their obligation under CPL § 190.50, the prosecutor has to know at the time of the grand jury presentation whether the defendant wishes to testify or not. The absolute and timely necessity to know is not present with CPL § 710.30 (1) (a). The CPL allows the defense counsel forty-five days from the date of arraignment — thirty days after the fifteen days allowed for the notice to be served — to file pretrial motions ( CPL § 255.20 [1 ] ). Thus, the few days between mailing and receipt are immaterial. Even if the defense counsel was not made aware of the notice in a timely fashion, the statute further mandates that the court "must entertain and decide on its merits, at any-time before the end of the trial" any pre-trial motions "based upon grounds of which the defendant could not, with due diligence, have been previously aware, or which, for other good cause, could not reasonably" have raised ( CPL § 255.20 [3 ] ).
The CPL is strangely silent on the subject of rules of service. While CPLR § 2103 is not automatically applicable to criminal cases, it should still be viewed as strong guidance on service questions, as long as its rules do not thwart the broader purposes of a particular criminal statute (as they did in Crisp ). There is no such conflict in this case. Therefore, the Court determines that "service" under CPL § 710.30 (1) (a) occurs at the time that the statement notice is placed into a postal mailbox. Since the notice in the instant case was put into a mailbox on February 6, 2019, which both sides agree is the fifteenth day from the date of the defendant's arraignment, it was timely "served." The defendant's motion is denied.
This constitutes the decision and order of this Court.