| People v Roberts |
| 2013 NY Slip Op 06470 [110 AD3d 1466] |
| October 4, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vRoosevelt Roberts, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.),rendered December 8, 2009. The judgment convicted defendant upon a jury verdict of,inter alia, criminal sale of a controlled substance in the third degree.
It is hereby ordered that the case is held, the decision is reserved and the matter isremitted to Onondaga County Court for further proceedings in accordance with thefollowing memorandum: On appeal from a judgment convicting him upon a jury verdictof, inter alia, criminal sale of a controlled substance in the third degree (Penal Law§ 220.39 [1]), defendant contends that County Court erred in denying hispreclusion motion with respect to a second set of statements set forth in an allegedlyuntimely CPL 710.30 notice served on him after his arraignment on a supersedingindictment. Defendant further contends that he was deprived of a full and fairopportunity to contest the admissibility of those additional statements at a hearing.Because we agree with defendant's latter contention, we hold the case, reserve decision,and remit the matter for a further Huntley hearing on the admissibility of thoseadditional statements.
Initially, we reject the contention of the People that defendant failed to preserve hiscontentions for our review. The grand jury issued an indictment charging defendant withcrimes similar to those contained in the indictment before us on this appeal, and thePeople provided a CPL 710.30 notice to defendant stating that they intended to use attrial a statement that defendant had made at the scene of his arrest. Defendant moved topreclude the admission of that statement at trial, and the court held a hearing on themotion. During that hearing, defendant also moved to preclude the additional statementson the ground that they had not been included in the CPL 710.30 notice. The prosecutorconceded that defendant had not been provided with a CPL 710.30 notice covering theadditional statements. After the hearing, the court granted defendant's motion to dismissthe indictment based on the legal insufficiency of the evidence before the grand jury.
The matter was re-presented to another grand jury that issued the supersedingindictment at issue here and, in conjunction with that superseding indictment, the Peopleserved a new CPL 710.30 notice that included the additional statements. After defendantwas arraigned on the superseding indictment, the court issued an order denyingdefendant's motion to preclude the [*2]statement includedin the first CPL 710.30 notice and, two days later, the court issued an amended orderdenying defendant's motion to preclude the additional statements, determining, inter alia,that defendant had made those additional statements spontaneously. In response to thecourt's amended order, defendant requested "new or additional hearings to address th[e]admissibility of the[ ] additional statements." In addition, at oral argument on thatrequest, defendant asserted that he had not been afforded a sufficient opportunity tocontest the admissibility of the additional statements, particularly in light of the People'sconcession at the hearing that those additional statements had not been included in thefirst CPL 710.30 notice. The court denied defendant's request and adhered to itsdetermination that the additional statements were admissible at trial. Consequently,defendant's contentions are preserved for our review because "the court 'was aware of,and expressly decided, the [issues] raised on appeal' " (People v Collins, 106 AD3d1544, 1546 [2013], quoting People v Hawkins, 11 NY3d 484, 493 [2008]; see generally People v Poole,55 AD3d 1349, 1350 [2008], lv denied 11 NY3d 929 [2009]).
With respect to the merits, we conclude that the court properly refused to precludethe additional statements included in the CPL 710.30 notice served by the People afterthe superseding indictment was filed (see People v Rivers, 67 AD3d 1435, 1436 [2009], lvdenied 14 NY3d 773 [2010], reconsideration denied 14 NY3d 892 [2010];see People v Littlejohn, 184 AD2d 790, 790-791 [1992], lv denied 81NY2d 842 [1993]). "Those [statements] were not referenced in the CPL 710.30 noticethat was served in connection with the original indictment, but the record establishes thatthe People filed the superseding indictment out of necessity after the court dismissed. . . the original indictment" (Rivers, 67 AD3d at 1436). We agreewith defendant, however, that the court erred in determining the admissibility of theadditional statements without reopening the Huntley hearing and affordingdefendant a further opportunity to contest their admissibility. The court concluded thatthe statements were spontaneously made and therefore not subject to suppression. At thetime of the Huntley hearing conducted in conjunction with the initial indictment,however, the only issue before the court with respect to the additional statements waswhether they should be precluded on the ground that they had not been included in thefirst CPL 710.30 notice. Consequently, inasmuch as the voluntariness of the additionalstatements was not at issue at that time, defendant had no reason or opportunity toexplore the issues of spontaneity or the effect of the previously-given Mirandawarnings, or to raise any other issues regarding the admissibility of those statements.Thus, "the hearing must be reopened" to afford him that opportunity (People vMcGee, 155 AD2d 878, 879 [1989]; see People v Tindal, 92 AD2d 717, 717[1983]). Present—Smith, J.P., Peradotto, Carni and Lindley, JJ.