PEOPLE v. KENNEDY (2022)

The defense has moved to preclude the People from offering any statements that were not properly noticed under C.P.L. § 710.30[1][a]. The People oppose.

For the reasons below, the motion is GRANTED. The People are precluded from introducing any statements at trial that are not, in sum and substance, “I DIDN'T DO IT, IT WASN'T ME.” This includes preclusion of any alleged statements by Mr. Kennedy to public servants that could be considered incriminatory and applies whether the statements are videorecorded or not.

FACTUAL BACKGROUND

The People commenced two cases against Mr. Kennedy, CR-019372-21BX, and CR-019373-21BX. At arraignment on both, the People filed a notice pursuant to C.P.L. § 710.30[1][a], of an alleged statement by Mr. Kennedy to police that the People seek to introduce at trial. The statement notice reads:

LEGAL ANALYSIS

Under C.P.L. § 710.30[1][a], “[w]henever the people intend to offer at a trial ․ evidence of a statement made by a defendant to a public servant, which statement if involuntarily made would render the evidence thereof suppressible upon motion pursuant to subdivision three of section 710.20, ․ they must serve upon the defendant a notice of such intention, specifying the evidence intended to be offered.” While the People need not provide a notice that recounts all such statements verbatim, the statements must be “described sufficiently so that the defendant can intelligently identify them.” (People v. Lopez, 84 NY2d 425, 428 [1994]).

Therefore, where a statement notice refers only to “exculpatory statements,” the People may not elicit alleged statements at trial that could be considered incriminating. (People v. Pallagi, 91 AD3d 1266, 1267-68 [4th Dep't 2012]; see also People v. Buza, 144 AD3d 1495, 1495-97 [4th Dep't 2016] [same]; People v. Smith, 138 AD3d 628, 629 [1st Dep't 2016] [statement at trial should have been precluded where noticed statement was “considerably less inculpatory”]). In such a situation, the People have not “specif[ied] the evidence intended to be offered.” (C.P.L. § 710.30[1][a]).

Accordingly, in People v. Pallagi, the Appellate Division found that statements should have been precluded from trial as beyond the § 710.30 notice's “sum and substance.” (91 AD3d at 1267-68). The convictions there arose where the charged individuals were accused of removing items from a store at the mall. (Id.). There, the statement notice “indicated that defendants made only exculpatory statements.” (Id.). During the trial, however, a police officer testified that he “asked defendant Sashalee N. Pallagi how defendants arrived at the mall, and she replied that a friend had given them a ride.” (Id.). The prosecutor then “argued during summation that the friend was part of the scheme to steal property.” (Id.). The Appellate Division reversed the convictions because the notice failed to “set out the sum and substance of the statements presented by the People at trial.” (Id.).

In People v. Buza, the Appellate Division similarly found that statements should have been precluded as beyond the § 710.30 notice's “sum and substance.” 144 AD3d at 1495-97. In that case, the notice referenced an accused person's statement that “one of the bedrooms” in a home searched by police “belonged to another person.” During the trial, however, a police officer testified that the “defendant explained where his own room was.” Id. at 1496. Based on that statement, the court concluded that “defendant was an occupant of the [searched] residence and, consequently, ․ that defendant had constructive possession of ․ drugs found therein.” (Id. at 1496-97). The Appellate Division reversed the convictions for failing to preclude the more incriminatory statement.

Accordingly, the Court precludes the People from introducing at trial any alleged statements by Mr. Kennedy to a public servant that are not, in sum and substance, “I DIDN'T DO IT, IT WASN'T ME.” This includes preclusion of any alleged statements by Mr. Kennedy to public servants that could be considered incriminatory. And it applies regardless of whether the alleged statements were videorecorded.

This constitutes the Decision and Order of the Court.

Wanda L. Licitra, J.