PEOPLE v. COLEMAN (2006)

Defendants, Curtis Coleman and Dwight Thomas, have moved to preclude the photo array and in-court identification of proposed People's witness known as “White Boy” pursuant to C.P.L. §§§ 710.30, 240.60 and 240.70.

The basic facts are undisputed.   On August 17, 2004, a Bronx County Grand Jury returned an indictment charging defendants with one count of Murder in the Second Degree, one count of Manslaughter in the First Degree, one count of Criminal Possession of a Weapon in the Second Degree and one count of Criminal Possession of a Weapon in the Third Degree arising from the shooting death of Marvin Barrett on June 9th, 2004.   The defendants were arraigned on September 7th and 20th of 2004, respectively, and C.P.L. § 710.30 notice was promptly served for Mr. Clifford Folkes, one of the eyewitnesses to the crime.   Motions were filed and Justice Troy Webber ordered Huntley/Dunaway, Wade and Mapp hearings.   At the conclusion of said hearings, on March 6, 2006, the People for the first time apprised the court and defense of the existence of an additional eyewitness known as “White Boy.” The People indicated that on August 27, 2005, almost one year after defendants' arrest and arraignment, a photo array procedure was conducted and “White Boy” made a positive identification of the defendants and also provided a written statement.   Defense immediately moved to preclude the introduction of this testimony pursuant to C.P.L. § 710.30 or in the alternative prohibiting the introduction of the subject evidence pursuant to C.P.L. §§ 240.60 and 240.70.  People v. Kirkland, 89 N.Y.2d 903, 653 N.Y.S.2d 256, 675 N.E.2d 1208 (1996).

The issues before the court are:  1) whether a post-arraignment procedure falls within the purview of C.P.L. § 710.30;  and 2) whether the People have an ongoing obligation to notify the defense of any identification procedure conducted after the fifteen day statutory notice period has elapsed.

Although both sides submitted legal briefs and verbal arguments, they have not provided the court with any authoritative precedent, nor has the court found any cases directly on point.

The defense argues that a post-arraignment procedure falls within the purview of C.P.L. § 710.30 and People's failure to reveal the existence of a second identification procedure and witness in a timely manner, violates the legislative intent of C.P.L. § 710.30, as well as, People's continuing obligation to give notice under §§ 710.30 and 240.60.   The People's primary argument is that since the procedure took place almost a year after the defendants were arrested and arraigned, the fifteen day rule as stated in C.P.L. § 710.30 and its preclusion rule do not apply.

The relevant parts of C.P.L. § 710.30 state that:

1.  Whenever the people intend to offer at a trial * * * * (b) testimony regarding an observation of the defendant either at the time or place of the commission of the offense or upon some other occasion relevant to the case, to be given by a witness who has previously identified him as such, they must serve upon the defendant a notice of such intention, specifying the evidence intended to be offered.

2. Such notice must be served within fifteen days after arraignment and before trial, and upon such service the defendant must be accorded reasonable opportunity to move before trial, pursuant to subdivision one of section 710.40, to suppress the specified evidence.   For good cause shown, however, the court may permit the people to serve such notice thereafter and in such case it must accord the defendant reasonable opportunity thereafter to make a suppression motion.

3. In 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.

 Historically, C.P.L. § 710.30 “was a legislative response to the problem of suggestive and misleading pretrial identification procedures treated by the Supreme Court in Gilbert v. California, 388 U.S. 263 [87 S.Ct. 1951, 18 L.Ed.2d 1178], United States v. Wade, 388 U.S. 218 [87 S.Ct. 1926, 18 L.Ed.2d 1149] and Stovall v. Denno, 388 U.S. 293 [87 S.Ct. 1967, 18 L.Ed.2d 1199]” People v. Gissendanner, 48 N.Y.2d 543, 552, 423 N.Y.S.2d 893, 399 N.E.2d 924.   In each of those cases, the court was concerned with trial identifications predicated on earlier confrontations * * * involving lineups, showups or photographs for the purpose of establishing the identity of the criminal actor.  People v. White, 73 N.Y.2d 468, 541 N.Y.S.2d 749, 539 N.E.2d 577 cert. denied, 493 U.S. 859, 110 S.Ct. 170, 107 L.Ed.2d 127 [1989].

C.P.L. § 710.30, “sets forth a procedure to provide notice to a defendant who might otherwise be unaware that the People are in possession of such evidence and thus allows the defendant to test the reliability of the identification before trial.” see. People v. White supra.   To this end, the statute's plain language supplies a specific guideline for the People to adhere to which is to give notice within “fifteen days after arraignment and before trial.”   The statute even allows for circumstances where there is lateness of the required notice since it gives the People an opportunity to request the courts to allow for service of a late notice “upon good cause shown.”

 The courts have carved out four exceptions to the applicability of C.P.L. § 710.30, that is, where the people are not required to give notice of evidence they intend to use at trial.   These are:  1) Where the witness previously knew the defendant and the confrontation is merely confirmatory, People v. Tas, 51 N.Y.2d 915, 434 N.Y.S.2d 978, 415 N.E.2d 967 (1980) (victim was familiar with the defendants, though he did not know their name, identification was admissible without notice because there was no prior “identification” within the meaning of the statute);  2) where the evidence is not the result of police-arranged procedure, People v. Semidey, 254 A.D.2d 57, 680 N.Y.S.2d 478 (1998) (where notice was not required when the statement is made as part of a criminal transaction);  3) judicially supervised identifications such as identifications made at pretrial suppression hearings, People v. White, supra;  and 4) where the defendant has made a motion to suppress and the court after holding a hearing on the matter denies it, People v. Kirkland, 89 N.Y.2d 903, 653 N.Y.S.2d 256, 675 N.E.2d 1208 (1996) (where defendant moved to preclude but then moved to suppress in effect waiving preclusion).

 In the instant case, the identification procedure by “White Boy” took place almost one year after defendants' arraignment, the court is in agreement that the People could not at this point comply with the fifteen day period mandated by the plain language of C.P.L. § 710.30. However, courts have avoided an interpretation of C.P.L. § 710.30 that places “too much emphasis on the statute's literal language when doing so would produce results plainly at odds with the policy of the legislation as a whole.”  People v. White at 474 n. 1, 541 N.Y.S.2d 749, 539 N.E.2d 577. Therefore, “a controlling principle in interpreting statutes is the legislative intent.”  Id. at 473, 541 N.Y.S.2d 749, 539 N.E.2d 577.

 In People v. O'Doherty, 70 N.Y.2d 479, 522 N.Y.S.2d 498, 517 N.E.2d 213 (1987), our Court of Appeals clearly set forth the intent and purpose of the legislature in enacting C.P.L. § 710.30 which provided for:  1) “fairness to the defendant” by allowing him an opportunity to obtain a ruling on the admissibility of evidence to be used against him;  and 2) “the orderly, swift and efficient determination of pretrial motions ”.   In accordance with that principle, both the intent and purpose of the legislature was to impose a continuing obligation on the part of the People to give prompt notification to the defense of any identification procedure conducted that fell outside any of the aforementioned exceptions.   Therefore, the only conclusion to be drawn is that § 710.30 has viability after the statutory fifteen days pursuant to the legislature's intent and purpose.

In this case, despite the inability of the People to comply with the statutory fifteen day notice, there still remained a continuing obligation to provide prompt notice of the post-arraignment identification procedure by “White Boy”. That is, the defendants were nonetheless entitled to have prompt written notice of said procedure, moreover, that notice had to comply with the substantive requirements of the statute.   See, People v. Lopez, 84 N.Y.2d 425, 618 N.Y.S.2d 879, 643 N.E.2d 501 (1994) (where the notice given to defendant must specify “the time, place and manner in which his identification by others was made.”).

 The legislature, in incorporating the “good cause” exception to § 710.30, recognized the harshness of the preclusion sanction and sought to provide for a mechanism that would cover unique circumstances not unlike the one before the court.   In this case, one could speculate that if the People had promptly applied to the court in writing for a good cause exception and gave prompt notice to the defendants, both the spirit and the intent of the statute would have been carried out.   The court would have permitted a late notice and the defendants would have been granted a Wade hearing, resulting in the swift resolution of all issues prior to trial.   Unfortunately, the People did not avail themselves of this remedy.   At this point, if the court were to permit a Wade or an independent source hearing, it would just result in further delay which would be contrary to the legislature's intent.

The only two Appellate Court decisions that have some similarity to the present case are People v. Whitaker, 106 A.D.2d 594, 483 N.Y.S.2d 100 (1984) and People v. Boswell, 193 A.D.2d 690, 598 N.Y.S.2d 34 (1993), which are distinguishable.   In People v. Whitaker, the defendant made a statement to a law enforcement agent some months after his arrest and arraignment and in People v. Boswell, the defendant made a statement to his cell mate nearly three months after the defendant's arraignment.   In both cases, the Appellate Division held that “the people could not comply with the requirements of § 710.30 by giving notice of the statements within fifteen days of arraignment.”  People v. Whitaker, supra.   However, in Whitaker, the court held that “the absence of notice did not render the statements inadmissible, as the defendant moved to suppress the evidence, and the motion was properly denied after a full hearing.”  (C.P.L. §§ 670.10, 710.30 subd. 3;  cf. People v. Brown, 92 A.D.2d 939, 460 N.Y.S.2d 365;  People v. Anderson, 80 A.D.2d 33, 437 N.Y.S.2d 985;  People v. Kirkland, supra.)   Also, in People v. Boswell, the Appellate court held that “in light of defendant's failure to raise this contention at trial, it is un-preserved for appellate review” (See, C.P.L. § 470.05(2)). In any event, the witness “was not an agent of the police at the time the statements were made for the purposes of warranting C.P.L. § 710.30 notice” (see, § 710.30(1)(A);  People v. Cardona, 41 N.Y.2d 333, 392 N.Y.S.2d 606, 360 N.E.2d 1306.)   At first blush, both of these cases may appear to stand for the proposition that C.P.L. § 710.30 does not apply to post-arraignment procedures conducted after the fifteen day period, however, in both cases the court declined to apply C.P.L. § 710.30 primarily because the facts fell within one or more of the exceptions to the statute, as opposed to making a blanket ruling that C.P.L. § 710.30 ceases to apply after the prescribed fifteen day notice period.

It is this court's opinion that C.P.L. § 710.30 applies to this instant case, absent any of the four exceptions, even where the identification procedure took place approximately a year after arrest and arraignment.   Obviously, the fifteen day statutory notice provision is inapplicable, however, the purpose, reasons and intent of the legislature in enacting C.P.L. § 710.30 compels this court to conclude that section § 710.30 imposes a continuing obligation upon the People to promptly notify the accused of any post-arraignment identification procedure and failure to comply with this obligation mandates the court to preclude the in-court identification testimony of the potential witness.

Accordingly, the defendants motion to preclude the photo array and in-court identification testimony of “White Boy” pursuant to C.P.L. § 710.30 is granted.

This constitute the decision and order of this court.

CAESAR CIRIGLIANO, J.