People v. Fort

109 Misc. 2d 990, 441 N.Y.S.2d 357, 1981 N.Y. Misc. LEXIS 2505
CourtSyracuse City Court
DecidedJuly 14, 1981
StatusPublished
Cited by7 cases

This text of 109 Misc. 2d 990 (People v. Fort) is published on Counsel Stack Legal Research, covering Syracuse City Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Fort, 109 Misc. 2d 990, 441 N.Y.S.2d 357, 1981 N.Y. Misc. LEXIS 2505 (N.Y. Super. Ct. 1981).

Opinion

OPINION OF THE COURT

Mathilde C. Bersani, J.

The question before this court is whether a District Attorney’s “blank notice” of intention to use identification evidence at trial meets the minimum requirements of CPL 710.30.

On April 20, 1981, the defendant was arraigned on the charge of criminal possession of stolen property in the third degree (Penal Law, § 165.40). The District Attorney served the defendant a notice of intention to use identification evidence at trial. This notice, dated April 17, 1981, specified that “the evidence will consist of 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.”

[991]*991On June 8, 1981, the defendant made an omnibus motion, which included a request for an order excluding the above-described identification testimony on the grounds that the District Attorney’s notice of intention fell short of the statutory requirements of CPL 710.30, in that it did not specify the evidence to be offered.

The issues that must be settled by this court are: First, whether a “blank notice” meets the requisite specificity contemplated by the Legislature that enacted CPL 710.30; and, second, if the notice is defective, whether this court should allow the District Attorney to amend the notice. Due to the frequent use of this type of notice by the District Attorney’s office, this court believes that a permanent resolution of these issues is imperative.

CPL 710.30 provides, in pertinent part:

“1. Whenever the people intend to offer at 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 the 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.”

Any contention that the District Attorney’s “blank notice” of intention to use identification evidence at trial meets the requisite specificity of CPL 710.30 (subd 1, par [b]) is inconsistent with a careful reading of that provision of the statute. The District Attorney’s notice gives a description of the identification evidence in question that is merely a word-for-word reproduction of the characterization of identification evidence found in CPL 710.30 (subd 1, par [b]). Logically, the Legislature must have desired [992]*992greater detail because the statute contains additional language, requiring a notice of intention “specifying the evidence intended to be offered.” Thus, use of a “blank notice” of intention to use identification evidence is not sufficient for the purposes of CPL 710.30 (subd 1, par [b]).

The District Attorney’s answer in opposition to the defendant’s motion to exclude the identification evidence in question makes obvious the problems inherent in a prosecutor’s use of “blank” CPL 710.30 notices. First, the District Attorney contends that the notice provided satisfies the specificity requirement of CPL 710.30 (subd 1); and, second, it is suggested that any further information regarding this evidence is more appropriately sought by a motion for discovery. The catch, of course, as the District Attorney points out, is that the defendant is precluded from requesting further discovery because any such request would occur beyond the 45-day time limit for motions, which is prescribed in CPL 255.20. “In the interest of justice”, however, the District Attorney in his answering affidavit reveals the date of the initial identification and that fact that the identification was made by means of a photo lineup.

Clearly, this means of obtaining information regarding the identification of a defendant by a witness who will testify at trial was not contemplated by the Legislature that enacted CPL 710.30. This statute, apparently part of a legislative response to the problem of suggestive and misleading pretrial identification procedures treated by the United States Supreme Court in United States v Wade (338 US 218) and Gilbert v California (388 US 263), was designed to provide defendants in criminal matters with adequate opportunity to intelligently prepare their cases under conditions conducive to an ultimate establishment of the truth. (See People v Briggs, 38 NY2d 319, 323; People v Mallard, 79 Misc 2d 270, 273; People v Utley, 77 Misc 2d 86, 96; see, generally, Denzer, Practice Commentary, McKinney’s Cons Laws of NY, Book 11A, CPL art 710, pp 263-264.)

In addition, when one examines the entire CPL article 710, it becomes apparent that the Legislature contemplated an orderly procedure for disposition of suppression [993]*993motions. (People v Slater, 53 AD2d 41, 43.) Requiring a defendant to make a motion to discover following notice of some identification evidence in the possession of the District Attorney not only upsets this procedure (see People v Davis, County Ct, Onondaga County, Oct. 15, 1980, Gale, J.), but also adds an unnecessary encumbrance upon an already overburdened criminal justice system.

Furthermore, an important aspect of this procedure is that the defendant carries the burden of properly challenging an unconstitutionally performed identification procedure. The vehicle for this challenge, the motion to suppress, must conform to the requirements of CPL 710.60 (subd 1), in that the moving papers “must state the ground or grounds of the motion and must contain sworn allegations of fact, whether of the defendant or of another person or persons, supporting such grounds.” Without an adequate demonstration of supporting facts in the defendant’s moving papers, the court may summarily deny the motion to suppress in a pretrial stage. (See CPL 710.60, subd 3; People v Allweiss, 48 NY2d 40, 49 [indicating that a motion to suppress must contain, at least, enough factual support for the contention that the identification procedure was suggestive].) Clearly, a “blank notice” such as the one served by the District Attorney in the case at bar cannot possibly provide a defendant with enough factual information to make a proper suppression motion. This is especially true in this case because the identification was conducted by means of a photo lineup at which the defendant was not present and, therefore, could not possibly have any personal knowledge of its having taken place. Thus, use of a “blank” form notice of intention to use identification evidence at trial cannot be held to be consistent with the recognized and proper procedure for disposition of motions to suppress this type of evidence.

In order to avoid any further misinterpretation of CPL 710.30, this court will explain the degree of specificity that will be expected in future 710.30 notices. “The word ‘specify’ means ‘precise’; the use of that word dictates a detailed settlement of particulars to distinguish from other things.”

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Bluebook (online)
109 Misc. 2d 990, 441 N.Y.S.2d 357, 1981 N.Y. Misc. LEXIS 2505, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-fort-nysyrcityct-1981.