Matter of Jose C.
2010 NY Slip Op 51796(U) [29 Misc 3d 1211(A)]
Decided on October 8, 2010
Family Court, Bronx County
Bannon, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 8, 2010
Family Court, Bronx County

In the Matter of Jose C., A Person Alleged to Be a Juvenile Delinquent, Respondent.


For the Presentment Agency: Melinda Skinner-Cifuentes, Corporation Counsel, Bronx County Family Court, 900 Sheridan Avenue, Bronx, NY 10451

For the Respondent: Mariella Martinez, The Legal Aid Society Juvenile Rights Division, Bronx County Family Court, 900 Sheridan Avenue, Bronx, NY 10451

Nancy M. Bannon, J.

In this juvenile delinquency proceeding, the respondent moves, inter alia, to preclude the presentment agency from offering identification evidence at the fact-finding hearing on the ground that it failed to provide timely and adequate notice of its intention to do so as required by Family Court Act 330.2. The court is called upon to determine whether the identification notice served by the presentment agency satisfied statutory requirements, whether the respondent waived the remedy of preclusion upon moving to suppress and, if so, whether the purported withdrawal of his suppression motion after commencement of the hearing nullifies the waiver. For the reasons set forth below, the motion is denied.

II. Factual and Procedural Background

On May 5, 2010, the respondent was arraigned on the instant petition which alleges that he committed acts which, if committed by an adult, would constitute the crimes of, inter alia, [*2]robbery in the second degree (Penal Law 160.10[1]), grand larceny in the fourth degree (Penal Law 155.30[5]) and attempted assault in the third degree (Penal Law §§110/120.00[1]). According to the petition, the respondent was one of a group of individuals who punched the complaining witness in the head and stole his hat and cell phone at approximately 2:30 p.m on May 4, 2010, near the intersection of Grand Concourse and Fordham Road in the Bronx.

On the date of arraignment, the Court paroled the respondent to his mother and adjourned the matter to June 10, 2010, for a conference. On May 19, 2010, fourteen days after the arraignment, the presentment agency served and filed a Voluntary Disclosure Form (VDF) which states the following with respect to an identification of the respondent: "Canvas [sic] done with complainant and two eyewitnesses with police. Complainant positively identified Respondent." The VDF further provides that the identification occurred at the date, time and place of arrest, which is stated elsewhere in the VDF as May 4, 2010, at 3:00 p.m. in the "vicinity of Grand Avenue and West 192nd Street, Bronx, NY."

On June 4, 2010, after receipt of the VDF, the respondent moved to suppress identification testimony or, in the alternative, for a Wade hearing (see United States v Wade, 388 U.S. 218 [1967]). The motion was denied without prejudice to renew. On June 18, 2010, the respondent renewed his motion and the motion was granted, on consent, to the extent that a Wade hearing was ordered. The hearing was commenced on August 12, 2010, with the direct testimony of Police Officer Joseph Petrillo, the arresting officer. This witness began his direct testimony by stating that the subject arrest and identification were made at 190th Street and Creston Avenue in the Bronx when the complainant pointed to and identified the respondent. It was not clear from the officer's brief testimony who was in his patrol car at the time of the identification, as he variously stated that the respondent and the complainant were in his car. At that point, the respondent's attorney asked if the witness could be excused and requested a continuance to file supplemental papers "based on this new information." The court granted the respondent's application for a Dunaway hearing and the matter was adjourned on consent.

By papers filed September 2, 2010, the respondent moved to preclude any identification testimony, arguing that the presentment agency had failed to satisfy the statutory notice requirements of Family Court Act 330.2(2). It is the respondent's position that the presentment agency's VDF failed to provide him sufficient notice of the precise type and exact location of the identification procedure actually used, which, he argues, was revealed by the hearing testimony of Officer Petrillo to be a "show-up" conducted at 190th Street and Creston Avenue rather than a "canvass" at Grand Avenue and West 192nd Street.

While conceding that the two locations are approximately one-half mile apart, the presentment agency maintains that the respondent waived preclusion by moving to suppress identification testimony and that, in any event, the respondent was not prejudiced by any late notice since he was granted a Dunaway hearing as well as a continuance for further investigation and research when the discrepancy was revealed during the course of the Wade hearing.

In reply, the respondent argues that he did not waive preclusion since there has been no denial of his suppression motion, the hearing having been adjourned before completion. He further asserts that, should the court deny his preclusion motion, he intends to withdraw his suppression motion. The respondent observes that although he did not move for preclusion at the time he moved for suppression, it was not until hearing the arresting officer's testimony that the [*3]alleged discrepancy in the notice was revealed.

In response, the presentment agency contends that the respondent should not be permitted to withdraw his suppression motion, mid-hearing, for the sole stated purpose of avoiding a ruling that he waived preclusion upon seeking suppression.

III. Discussion

Family Court Act 330.2(2) provides that "whenever the presentment agency intends to offer at a fact-finding hearing evidence described in section 710.20 or subdivision one of section 710.30 of the criminal procedure law [suppression of statement and identification evidence], such agency must serve notice of such intention" upon the respondent within fifteen days of the initial appearance. In the absence of notice, "no such evidence ... may be received against the respondent at the fact-finding hearing unless he has, despite the lack of such notice, moved to suppress such evidence and such motion has been denied." Family Ct Act 330.2(8).

The purpose of the notice requirement is to promote the swift resolution of pre-trial motions (see People v Shoukron, 234 AD2d 400 [2nd Dept. 1996]) app denied 89 NY2d 1015 [1997]) and the efficient prosecution of criminal cases (see People v Ocasio, 183 AD2d 921 [2nd Dept. 1992] appeal dismissed 80 NY2d 932 [1992]), and also to afford the defendant a meaningful opportunity to conduct a proper investigation and challenge the admissibility of the evidence at issue. See People v Amparo, 73 NY2d 728 [1988]; People v. O'Doherty, 70 NY2d 479 (1987); People v Otero, 217 AD2d 796 (3rd Dept. 1995).

In regard to identification evidence, compliance with the statutes requires the presentment agency to "inform the respondent of the time, place and manner in which the identification was made" (People v Lopez, 84 NY2d 425, 428 [1994]) within the prescribed period (see People v Amparo, supra ) or demonstrate good cause for their failure to do so. See People v. O'Doherty, , supra ; While the prosecutor must do more than simply check boxes on a form (see People v Lopez, supra ; People v Palermo, 169 AD2d 787 [2nd Dept. 1991]) in order to comply with statutes, it need not state all details of the subject evidence with perfect precision. Rather, it is enough that the notice given conveys the substance of the evidence with enough accuracy so as to allow the respondent a meaningful opportunity to challenge it. See People v Lopez, supra ; People v Bennett, 56 NY2d 837 (1982); People v Bailey, 66 AD3d 491 (1st Dept. 2009) lv denied 13 NY3d 936 (2010); People v Perilla, 247 AD2d 326 (1st Dept. 1998) lv denied 91 NY2d 1011 (1998); People v Otero, supra ; People v Owens, 190 Misc 2d 49 (Crim Ct, NY County 2001).

It has been held that identification notice was sufficient even where it mischaracterized the type of identification procedure used (People v Canute, 190 AD2d 745 [2nd Dept. 1993] lv denied 81 NY2d 968 [1993]), misstated the name of an identifying witness (People v Ocasio, supra ) or omitted the site of the line-up and the officer who conducted the line-up. See People v Perilla, supra . In People v Bailey, supra at 492, the First Department held that even where no notice was provided for a police canvass, that evidence was not precluded since the defendant nonetheless learned of this identification procedure during a suppression hearing concerning a noticed point-out and "proceeded to litigate its lawfulness" at that hearing.

Similarly, statement notice need not include a "verbatim recitation" of the actual statement (see People v Otero, supra at 797) but is sufficient so long as it provides the "sum and [*4]substance" of the statement. See People v Bennett, 56 NY2d 837 (1982); People v Holmes, 170 AD2d 534 (2nd Dept. 1991) lv denied 77 NY2d 961 (1991); see also People v Velasquez, 33 AD2d 352 (1st Dept. 2006) lv denied 7 NY3d 929 (2006) [failure to provide CPL 710.30(1)(a) irrelevant where statement introduced at trial was "substantially identical" to noticed statement which defendant moved to suppress]. Moreover, where a notice contains only "a minor mistake and is correct in all other aspects, such notice may be amended even after the notice period has run." See People v Barfield, 22 Misc 3d 1136(A), 2009 WL 692082 (Dist Ct, Suffolk County 2009) citing People v Canute, supra , and People v Ocasio, supra .

Here, there is no dispute that the VDF was timely served and accurately stated the date and time of the identification, the identity of the person making it and to whom it was made. The alleged infirmity in the notice is in the location and characterization of procedure used. However, under the circumstances presented, neither renders the notice ineffective. While the location of the identification provided in the VDF - vicinity of Grand Avenue and West 192nd Street - could have been stated with more precision, it is not disputed that this location was within several blocks of the location of the identification, as revealed at the hearing, and the street corner where the crime is alleged to have occurred, which was accurately stated in the VDF. As such, the respondent was sufficiently apprised of the location of the identification so as to enable him conduct an investigation and move for suppression. The flaw in this case was no more significant than the flaws found in the identification notices served People v Bailey, supra and People v Perilla, supra , which notices the First Department found to be adequate.

The respondent does not allege and the record does not indicate any bad faith on the part of the presentment agency in providing an inaccurate location in their VDF. The court observed that the Assistant Corporation Counsel appeared as surprised as respondent's attorney when Officer Petrillo stated the exact location of the identification. Nor can the respondent reasonably argue that he was prejudiced by the discrepancy since once it was elicited he was immediately granted the relief he requested - an broadened hearing and a continuance. Although, as he points out, he could not have learned of this or any inadequacy in the notice prior to the hearing, the minor discrepancy that was revealed at this hearing does not warrant the remedy of preclusion, particularly in light of the remedial relief granted to the respondent - before the hearing, upon discovery of the discrepancy and as set forth below.

Further, it cannot be said at this juncture that the notice was insufficient for describing the identification procedure as a "canvass." The brief hearing testimony taken did not definitively establish, as the respondent asserts, that the police conducted a show-up and not a canvass. Indeed, both procedures may have been used. Logic would dictate that Officer Petrillo put the complainant and the two eyewitnesses in his patrol car and was conducting a canvass when summoned by other officers to the corner of 190th Street and Creston Avenue where the respondent had been apprehended by other officers. However, as noted above, the hearing was adjourned before the testimony of this officer was concluded. In any event, an "improper denomination of the identification procedure" without more, does not render the notice defective. People v Canute, supra at 745; see People v Bailey, supra .

Family Court Act § 330.2(8) expressly provides that even where the presentment agency fails to give adequate notice, they may nonetheless use the evidence at a fact-finding hearing if the respondent has moved to suppress the identification and the motion is denied. See People v [*5]Kirkland, 89 NY2d 903 (1996); People v Merrill, 87 NY2d 948 (1996); People v Wager, 19 AD3d 263 (1st Dept. 2005) lv denied 5 NY3d 811 (2005); Matter of Gilbert C., 15 AD3d 172 (1st Dept. 2005). In Kirkland, supra , the Court of Appeals held that the CPL 710.30(3) notice requirement was excused because the defendant unsuccessfully moved for suppression and received "a full hearing on the fairness of the identification procedure." The Court reasoned that, therefore, while the People failed to serve notice "specifying the evidence" sought to be introduced, "any alleged deficiency in the notice provided by the People was irrelevant." People v. Kirkland, supra at 905. Similarly, in Matter of Gilbert C., supra , the First Department, citing People v Kirkland, found no basis for preclusion under Family Court Act § 330.2 since, notwithstanding the claimed inadequacy of the notice, the respondent moved to suppress the identification at issue and was granted a hearing. Thus, even if the notice were found to be inadequate in this case, the presentment agency would not be precluded from using the identification evidence since the respondent waived the remedy of preclusion when he moved for suppression and was granted a hearing

Nor can the respondent void or nullify the waiver by now withdrawing his suppression motion, nunc pro tunc, after commencement of the hearing. It is well settled that a party may not withdraw a pending motion if the withdrawal will result in prejudice to the other party. See People v Catten, 69 NY2d 547 (1987); People v Kellman, 156 Misc 2d 179 (Sup Ct, Kings County 1992). Addressing the very issue presented in this case, the court in People v Rodriguez, 179 Misc 2d 922 (Sup Ct, Monroe County 1999) applied that principle and held that "a defendant should not be entitled to preclusion by utilizing the procedural device of withdrawing a suppression motion, and thereby prematurely terminating the hearing." As in Rodriguez, "prejudice would obviously attach if permission to withdraw the motion would now lead to preclusion of the identification testimony" (People v Rodriguez, supra at 926) here, some 3 ½ months after the respondent was timely served with identification notice.

Contrary to the respondent's contention, neither Family Court Act § 330.2(8) nor Criminal Procedure Law § 710.30(3) can be reasonably interpreted to require completion of the hearing and a ruling by the court before a waiver of preclusion becomes effective. A common sense reading of the statutes is that denial of the motion is referenced only because, if the motion were granted and the evidence suppressed, the remedy of preclusion would be unnecessary. Moreover, while the defendants in People v Kirkland, supra and People v Wager, supra and the respondent in Matter of Gilbert C., supra , each completed his suppression hearing, none of those courts indicated that waiver of preclusion would not be effective prior to conclusion of the hearing.

As stated above, the purpose of the notice requirement is to promote the swift resolution of pre-trial motions as well as to afford the respondent a meaningful opportunity to investigate and challenge the evidence sought to be introduced. Where, as here, the respondent is given that opportunity by being provided timely and adequate identification notice and is granted a suppression hearing, but then makes a considered decision to forfeit that opportunity by withdrawing his motion in the midst of testimony, purely for tactical reasons, he does so at his own peril since, at that point, the statutory intent has been fulfilled, leaving the subject evidence no longer subject to suppression or, in this case, preclusion.

[*6]IV. Conclusion

The presentment agency is not precluded from offering identification evidence at the fact-finding hearing because the identification notice, although flawed, was sufficient to satisfy statutory requirements. In any event, the respondent waived the remedy of preclusion by his motion to suppress and may not now withdraw his suppression motion for the purpose of nullifying the waiver.

However, under the circumstances presented, the court, on it own motion, grants the presentment agency leave to amend the identification notice in accordance with this order and decision, and grants the respondent leave to renew his suppression motion and continue the Wade/Dunaway hearing, should he be so advised. Otherwise, the matter shall be scheduled for a fact-finding hearing.

Accordingly, it is

ORDERED that the respondent's preclusion motion is denied, and it is further,

ORDERED that the presentment agency is granted leave to amend the previously served identification notice in accordance with this order and decision, and it is further,

ORDERED that the respondent is granted leave to renew his suppression motion and continue the Wade/Dunaway hearing, should he be so advised.

Dated: October 8, 2010


Nancy Bannon, J.F.C.