Fatal Motion Drafting 101 or Be Careful What You Wish For...

In People v.Troy Smith, (Index No. 25206/02,)2005 WL 1124097 (N.Y.Dist.Ct.), 2005 N.Y. Slip Op. 25181(District Court, Nassau County, New York)Judge Ken Gartner (quickly becoming a favorite of this column) teaches a painful lesson to defense counsel. Be careful what you ask for you might really get it.

In Smith the court was faced with a motion to reargue an omnibus motion that granted a suppression hearing on a show up instead of precluding the identification testimony because the notice requirement was not complied with. It seems that the defendant filed a motion to preclude the identification testimony or IN THE ALTERNATIVE grant a suppression hearing.

Now for reasons I am not really sure of, the courts of Nassau County really hate to preclude evidence. The law clearly requires it where the government fails to give its notices within 15 days of arraignment. Hence defense counsel in the county, trying to protect themselves from bad decisions at the trial level without screwing up their appellate rights concocted the idea of pleading in the alternative.

The rule seems easy enough to follow. If the defendant is arraigned the prosecution must give notice of any police produced identification procedure within 15 days of the arraignment, unless the prosecution could show good cause as to why it could not comply (ie a death or coma etc. Office screw up is not a good reason.) Nevertheless it was often honored in the breach. Where counsel moved for preclusion but not suppression ,the court would deny preclusion and then render the subsequent motion for suppression untimely.

Now defense counsel, lead by the Nassau Legal Aid Society developed a solution. Move for Preclusion and IF AND ONLY IF preclusion was denied then suppression. Hence both motions were timely and by requesting the court handle the motions in order appellate rights were preserved.

Now the appellate courts have been hemming and hawing about this tactic for a while because they feel that if you received notice of the procedure in time to get a hearing and you asked for the hearing the basic rights protected by CPL 170.30 have been met and there is no need to keep out otherwise good evidence because of an arbitrary time Barred.

Little be little they have been whittling away at the statute wherever counsel has tried to preserve both trial and appeal rights simultaneously. Judge Gartner in his inimitable way explained the reasoning quite well, but he blew the chance to show his true conservative leanings when he substituted the judicial dicta in a few Court of Appeal and Appellate Division ruling for the clear meaning of the statute.

Judge Gartner ruled that "Defendant's motion to suppress show-up identifications on substantive grounds that was granted to extent of ordering Wade hearing established opportunity for pre-trial scrutiny of identifications that invoked exception waiving defendant's alternative motion to preclude evidence of the same show-up identifications pursuant to criminal procedure statute based on People's failure to timely serve notice of intent to use identifications. He went on to explain that the in cases where the defendant moved and received a suppression hearing and where he then lost or withdrew the motion after the hearing had begun he waived preclusion because he had the opportunity to have the issues as to the Id procedure ajudicated. This would make more sense in that it was judicially economical and discourages the use of the suppression hearing as a discovery device (although it is and should be used as a discovery device.)

In the Smith case, the clear wording of the statute and the wording of CPL 250.50 which streamlines motion practice into the dreaded Omnibus motion makes what defense counsel did here seem very fair. She said she was moving for preclusion because the District Attorney's office failed to give proper notice. Then according to the statute (CPL 170.30) she was moving for a suppression hearing only if she lost the preclusion motion (clearly saving the court the trouble of another motion) and thereby waiving her right to appeal the preclusion decision if she proceeded with the motion.

Instead of looking to the clear wording of the law Judge Gartner superimposed his own interpretation on the motion practice and has ruled that even asking for a suppression hearing gives the court the right to ignore the preclusion motion and just grant the hearing thereby rendering the first part of CPL 170.30 moot. Again we are not talking about having lost the preclusion motion and then deciding to waive the appeal and taking the hearing. In this decision the court is deciding it has a choice to preclude or to grant suppression based on a pleading that does not clearly waive the option. Despite the clear wording of the statute.

What is most disappointing in this decision is that Gartner has asked the appellate courts to straighten out some of the differences in interpretation of CPL 170.30. I think the legislature has already done it's job. Get your notice in within 15 days of arraignment or get precluded. 15 days... seems clear enough to me.

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