People v. Owens

Legal Aid Society, Kew Gardens (Michele Maxian and Pamela Lineman of counsel), for defendant. Richard A. Brown, District Attorney of Queens County, Kew Gardens (Michael Hanratty of counsel), for plaintiff.

OPINION OF THE COURT

AUGUSTUS C. AGATE, J. The defendant has moved in an omnibus motion for the following: (1) motion to compel bill of particulars and discovery; (2) motion to deem information a complaint; (3) motion to preclude identification; (4) motion for a Sandoval hearing; and (5) reservation of rights. The motion is decided as follows:

Motion for Bill of Particulars and Discovery

The People are directed to comply with the motions for discovery and/or a bill of particulars to the extent required by CPL 240.20 and 200.95.

Motion to Deem Information a Complaint

The original supporting deposition has a signature that appears to have been crossed out. The court does not have to address the motion to deem the information a complaint, because the People have filed a new supporting deposition.

Motion to Preclude Identification

The defendant is charged with menacing in the second degree (Penal Law § 120.14 [1]) and harassment in the second degree (Penal Law § 240.26 [1]). The defendant has made a motion to preclude the People from introducing identification evidence, contending that the People have failed to provide him with appropriate notice pursuant to CPL 710.30 (1) (b). The defendant specifically argues that because the People omitted the name of the identifying witness on the notice form and because the notice was given to the defendant more than 15 days after the time of the arraignment, the People failed to comply with the statute. The court does not agree. CPL 710.30 (1) (b) mandates that the People serve notice, upon the defense, of their intent to offer at trial identification notice of a witness who has previously identified the defendant. This notice should be provided within 15 days of arraignment. (CPL 710.30 [2].) The failure of the People to abide by this mandate requires preclusion of the identifying witness' testimony as to both his in-court and unnoticed out-of-court identification unless the People demonstrate good cause for their failure, or unless the defense has moved for suppression of the evidence despite the lack of proper notice. (CPL 710.30 [2], [3]; People v Rodriguez, 156 Misc 2d 949 [1993].) To decide this motion the court must examine what exact information must be included in the notice of identification for it to be sufficient under CPL 710.30 (1) (b). In People v O'Doherty (70 NY2d 479), the Court articulated what was the purpose behind the enactment of CPL 710.30. "[T]he `central purpose' of the notice provisions of CPL 710.30 is to provide a defendant with adequate notice of statements and pretrial identifications so as to permit the defendant a meaningful opportunity to challenge the evidence at issue." (People v Centeno, 168 Misc 2d 172, 175.) This then begs the question: what kind of information must be provided in the looking at all of the information which is provided in the notice in question, in order to determine the sufficiency of the notice. Upon examination of the CPL 710.30 notice that was provided to the defendant in the case at bar, this court holds that the notice is not a "blank sheet" notice, as was the case in Lopez (supra). The court finds that the notice in this case clearly provides the time, date, location, type of identification, and to whom the identification was made. This court rules that the CPL 710.30 notice was timely, as it was provided at the arraignment. The court also holds that while it is "better practice" to name the identifying witness in the CPL 710.30 notice (People v Hilton, 147 Misc 2d 200), the failure to do the same alone is not fatal and does not render the notice insufficient unless there are other facts and omissions as discussed above, that warrant the preclusion of the identification testimony. It also should be noted that the identification procedure used in this case was a confirmatory identification, which means that the CPL 710.30 notice requirement would not have been needed to be given to the defendant. (People v Gissendanner, 48 NY2d 543.) The exception to the CPL 710.30 notice requirement is based on the notion that where a witness knows the defendant, there is "no risk that police suggestion would lead to a misidentification." (People v Sides, 265 AD2d 907.) Since the defendant did not move for a Rodriguez hearing, the court will not address that issue. (People v Rodriguez, 79 NY2d 445 [1992].) This motion to preclude identification testimony is denied. Sandoval Hearing The branch of the defendant's motion seeking a Sandoval hearing is granted to the extent that the defendant may renew this part of the motion before the Trial Judge.

Reservation of Rights

The branch of the defendant's motion seeking the right to make further motions is granted to the extent provided for in CPL 255.20 (3).