Opinion
August 11, 1998
Barry E. Warhit, White Plains, for Roosevelt Payne, defendant.
Jeanine Ferris Pirro, District Attorney of Westchester County, White Plains ( Calvin H. Scholar of counsel), for plaintiff.
Defendant Roosevelt Payne's motion to strike the Peoples CPL 710.30 notice of intention to offer statements against him is denied.
Attached to all three copies of the indictment served upon the defendants at their April 3, 1998 arraignment are two CPL 710.30 notices of oral statements allegedly made at 10:30 P.M. in the vicinity of room 17 at 88 Florence Avenue, White Plains. Both bear the following caption and preliminary language:
"NOTICE TO DEFENDANT OF INTENTION TO OFFER "EVIDENCE PURSUANT TO SECTION 710.30 CPL
"Please take notice, that the District Attorney intends to offer at trial evidence of a statement made by the defendantJUANITA JACKSON to a public servant [which], if involuntarily made, would render the evidence thereof suppressible upon motion made pursuant to Subdivision 3 of Section 710.20 CPL" (emphasis as in original).
Thereafter, on June 15, 1998, 73 days after arraignment, the People served an "Amended Notice" upon defendant. The amended notice amends the second of the two original notices in that it substitutes Juanita Jackson's name with the defendants name.
Examination of the first statement reveals that it refers to a female defendant. In contrast, it is readily apparent from a reading of the second statement, that it refers to a male speaker. In any event, the second statement could not reasonably be read as being attributed to Juanita since it notices a statement made by the speaker to Juanita. Furthermore, the speaker indicates that he and Juanita share a room at 88 Florence Avenue. That is the address that defendant and Juanita gave to the police when arrested. Defendant Richard Story resides at 4 Beech Street, White Plains. Given those parameters, the only conclusion that can be reached upon a reading of the noticed statement is that it is being attributed to defendant Roosevelt Payne, and no other.
Were the court to treat the amendment as a late notice of statement, it would have granted defendants motion since, among other things, timeliness of notice is strictly enforced, and the People have not shown "good cause" for such late notice. Among other things, "good cause" cannot be established by "office failure" ( People v. Briggs, 38 N.Y.2d 319, 321), "mere neglect" ( People v. Boughton, 70 N.Y.2d 854, 855), or the absence of prejudice to the defendant ( People v. McMullin, 70 N.Y.2d 855, 856-857; People v. O'Doherty, 70 N.Y.2d 479, 481, 486-487). In line with such strict construction are holdings that prevent the remediation of late notice deficiencies through discovery practice taking place outside of the 15-day period following arraignment ( People v. Lopez, 84 N.Y.2d 425, 428-429; People v. Kahley, 214 A.D.2d 960 [4th Dept 1995]).
However, given the substance and the nature of the subject statements, I find that the service upon the defendant of the "Amended Notice" constitutes an amendment to an already timely served notice. As such, the propriety of its filing is examined under the more liberal rules that are applicable to the amendments of timely served noticed statements which, generally, require a comparison of the content of the original notice to that of the amended notice ( see, People v. Springer, 221 A.D.2d 386 [2d Dept 1995] [notice of statement sufficient to allow a sketch into evidence since noticed statement contained sum and substance of what drawing indicated]; People v. Martinez, 203 A.D.2d 212 [1st Dept 1994] [unnoticed statements were entirely consistent with noticed statement]; People v. Bennett, 80 A.D.2d 68 [3d Dept 1981] [challenged oral admission substantially the same as written statement], affd 56 N.Y.2d 837; People v. Canute, 190 A.D.2d 745 [2d Dept 1993] [difference between identification notice served and evidence sought to be introduced at trial did not impede defense], lv denied 81 N.Y.2d 968).
An amendment to a CPL 710.30 notice of statement is permissible where, as here, the amendment and the original timely served notice are identical, except to the extent that the amendment seeks to change that which is readily apparent to the defendant from a mere reading of the statement; here, that the statement is one alleged. to have been made by him.
Accordingly, the motion to strike is denied.
In light of this determination, the court will allow defendant until September 1, 1998 to file a motion to suppress the noticed statement, if he so chooses.