
    The People of the State of New York, Respondent, v Jamalabo A. Briggs, Appellant.
    Argued October 24, 1975;
    decided December 22, 1975
    
      
      Rhea Kemble Neugarten, Carl O. Callender, Henry H. Korn and Marlene Alva for appellarít.
    I. Detective Moore’s testimony concerning statements allegedly made to him by Mr. Briggs was improperly admitted. (People v Spatarella, 34 NY2d 157; People v Schwartz, 30 AD2d 385; People v Guerra, 30 AD2d 659; People v Hernandez, 25 NY2d 869, 397 US 914; People v Lee, 27 AD2d 700; People v Ross, 21 NY2d 258; People v Harris, 31 AD2d 828, 25 NY2d 175, 401 US 222; People v Utley, 77 Misc 2d 86; People v Selikoff, 35 NY2d 227; Giglio v United States, 405 US 150.) II. The failure to give pretrial notice constituted reversible error. (People v Dropkin, 261 App Div 223; People v Schaeffer, 253 App Div 202; People v Magyar, 47 Misc 2d 711; People v Perry, 27 Misc 2d 355; People v Curtis, 225 NY 519.)
    
      Mario Merola, District Attorney (Karen Zelfman Bell of counsel), for respondent. I.
    Defendant-appellant’s guilt was established beyond a reasonable doubt by legally competent evidence. (People v Pinnock, 207 Misc 1097; People v Hakala, 270 App Div 612; People v Magyar, 47 Misc 2d 711; People v Perry, 27 Misc 2d 355; People v Becker, 215 NY 126; People v Seidenschner, 210 NY 341; People v Taylor, 138 NY 398; People v Cerullo, 18 NY2d 839; People v Farina, 290 NY 272.) II. Defendant-appellant’s statements were properly admitted by the trial court. (Miranda v Arizona, 384 US 436; Giglio v United States, 405 US 150; People v Harris, 31 AD2d 828; People v Schwartz, 30 AD2d 385; People v Ross, 21 NY2d 258; 
      People v Herman, 50 Misc 2d 644; People v Pease, 67 Misc 2d 359; People v Huntley, 15 NY2d 72; Jackson v Denno, 378 US 368.)
   Chief Judge Breitel.

Defendant appeals from a conviction, after nonjury trial, for leaving the scene of an accident without reporting property damage (Vehicle and Traffic Law, § 600). He was sentenced to an unconditional discharge and his motor vehicle operator’s license revoked. The Appellate Term affirmed, without opinion. Defendant’s operator’s license has since been reinstated pursuant to the filing of a certificate of relief from civil disabilities (Correction Law, § 702, subd 1).

The issue is whether the People’s failure to give defendant the statutory notice before trial that they intended to offer inculpatory admissions by him to a police officer because of "a lack of office continuity” or other office failure constituted good cause under the applicable statute.

There should be a reversal. A "lack of continuity” or other office failure in the prosecutor’s office does not constitute good cause for a failure to give the required notice before trial, and hence, the inculpatory statements were not admissible.

Defendant, then 51 years of age, is a Nigerian citizen. He had studied in this country for 12 years and was working toward a master’s degree in chemistry. Defendant operated a taxicab on a part-time basis. He had never before been arrested or convicted for any crime or traffic offense.

On April 5, 1973, defendant, while operating his taxicab at low speed, five miles per hour, on defendant’s statement, in congested late afternoon traffic on the Grand Concourse in The Bronx, became involved in a traffic incident with the complainant, Miss Betty Britton. At trial, complainant testified that defendant’s vehicle had collided with her’s, scraping the side of her car from the driver’s door handle to the left front fender. Both cars allegedly pulled over. She stated that, when confronted by her, defendant had asserted that her automobile had struck his taxicab. When she demanded his operator’s license, vehicle .registration, and insurance card, defendant did not respond but immediately drove from the scene. She claimed that damages of $107 were caused to her automobile.

Testifying in his own behalf, defendant recalled that he had been alerted by one of his passengers that a woman driver was driving too close to his taxicab, and that they had exchanged warnings to remain in their own lanes. Defendant maintained, however, that no “accident” ever occurred.

After complainant had testified, the People called a New York City detective to the stand. The detective testified that he had questioned defendant on April 11, 1973, after advising him of his right to counsel and to remain silent. The detective was then asked whether defendant had made any statements. At this point, defense counsel objected, on the ground that no notice of intention to use any of defendant’s statements had been given. The court permitted the prosecutor to serve the notice then and there, and granted an adjournment during which defense counsel would be allowed to examine the police officer to determine the voluntariness of the statements. Defense counsel, protesting that no “amount of adjournments” could cure the defect, proceeded after a midday recess.

At the afternoon hearing on the admissibility of defendant’s statements, the court reserved decision on the motion, and permitted the detective to continue testifying. The detective testified that defendant had stated to him that there had been an accident, and that he had said that the woman claimed that he had struck her automobile. Defendant, according to the police officer, also stated that he had not exchanged the necessary documents, although defendant did not say that he had been asked by complainant for an exchange. The court later denied the motion to suppress and permitted the police testimony to stand.

When the People intend to offer at trial evidence of statements made by a defendant to a police officer, which if involuntarily made would render the evidence of those statements suppressible, they "must serve upon the defendant a notice of such intention” before trial (CPL 710.30, subds 1, 2). Only upon a showing of “good cause” may the court permit service of the notice during trial with a reasonable opportunity to make a suppression motion during trial. In the absence of proper notice, however, no evidence of the statements may be received against a defendant, unless, despite a lack of notice, the defendant has moved to suppress the statements and the motion has been denied (CPL 710.30, subd 3).

The stated preference for pretrial notice of the People’s intention to use a defendant’s statements as evidence against him implements the purpose of the statute. That purpose, it has been repeatedly said, is to give a defendant adequate time to prepare his case for questioning the voluntariness of a confession or an admission (People v Harris, 25 NY2d 175, 177, affd 401 US 222; People v Ross, 21 NY2d 258, 262; People v Schwartz, 30 AD2d 385, 388; People v Lee, 27 AD2d 700 [each construing former Code Grim Pro, § 813-f, the predecessor statute]; People v Utley, 77 Misc 2d 86, 95). The statutory procedure permits an orderly hearing and determination of the issue of the fact and voluntariness of statements before trial, thereby preventing the interruption of trial to challenge initially the admission into evidence of the statements (cf. People v Huntley, 15 NY2d 72, 78).

Moreover, pretrial notice affords defense counsel an opportunity, prior to trial, to investigate the circumstances of the alleged fact and voluntariness of the purported statements and prepare the defense accordingly (see People v Ross, 21 NY2d 258, 264, supra [dissenting opn], construing former Code Grim Pro, § 813-f; People v Utley, 77 Misc 2d 86, 94, supra). Although a defendant may often be aware of prior statements or even the likelihood that the prosecution will offer his prior statements as evidence against him at trial, there is a reasonable probability of his unawareness in some instances, or even a greater probability of his counsel’s unawareness (cf. Denzer, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 710.30, p 283). Thus, independent of considerations of challenging the voluntariness of his statements, considerations of fair play demand that a possibly unaware defendant be apprised before trial of any incriminating statements intended to be offered against him (see People v Utley, 77 Misc 2d 86, 94, supra).

If no notice is given before trial, the purposes of the statute may be defeated by allowing service of the notice at trial. Thus, as the statute unqualifiedly commands, only upon a showing of good cause may the court permit service of the notice at trial. The court must balance the reason for the failure to give proper notice against the harm to defendant and, if good cause be shown, may, in the interests of justice, permit service of the notice at trial. If this be done, defendant must be accorded a reasonable opportunity to move to suppress the statements and a reasonable time to prepare for a hearing (CPL 710.30, subd 2). In many cases, an adjournment will suffice; in others, a more extended period for investigation may be necessary.

If, however, no good cause is shown, a failure to give the required notice before trial mandates exclusion of those state-merits (see People v Guerra, 30 AD2d 659; People v Lee, 27 AD2d 700, supra; cf. People v Spatarella, 34 NY2d 157, 163). To hold otherwise would be to condone and encourage noncompliance in the prosecutor’s office and to undermine the salutary purposes of the statute.

Defendant was never given notice before trial that his statements to the police would be used as evidence against him; nor did he move to suppress the statements before trial. Thus, absent a showing of "good cause” for the failure to give notice, the statements must have been excluded.

The People, alleging only a "lack of continuity” in the prosecutor’s office, have not shown good cause for their failure to give defendant the required notice before trial. In fact, it is questionable whether the prosecutor has shown any cause, good or bad. The term "lack of continuity” evidently referred, as the trial court seemed to believe, to the trial prosecutor’s lack of knowledge whether any pretrial notice had been served by his office. The record gives no further information, and the briefs do no better. Lack of continuity or other office failure does not constitute the "unusual circumstances” contemplated by the statute (see Denzer, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 710.30, p 283). Instead, the People’s failure to give notice, because of lack of continuity in the prosecutor’s office, is but another example of an absence of orderly office procedure. While this failure may be due, in some part, to a heavy workload in the prosecutor’s office, a failure is not excusable. As the court stated in Santobello v New York (404 US 257, 262), a case involving a lack of continuity in the same prosecutor’s office, "The staff lawyers in a prosecutor’s office have the burden of letting the left hand know what the right hand is doing’” (cf. Giglio v United States, 405 US 150, 154).

The issue is not a trivial or merely technical one. Prior statements, especially oral ones, to a police officer, are accorded high credibility by fact finders, jury or Judges. Whether in fact they were made, whether they were voluntary, and the precise form which they took may be crucial to the determination of innocence or guilt. To deprive defendants in criminal matters unnecessarily of an advance opportunity to investigate the facts and circumstances is neither fair nor conducive to establishing the truth through the adversary process with the assistance of counsel. A cavalier treatment of the statute’s requirements frustrates its ends.

Because the complainant gave testimony which a fact finder might accept as probative of all the necessary elements of the offense, a dismissal of the complaint, otherwise indicated, would not be proper. Consequently, there must be a new trial.

Accordingly, the order of the Appellate Term should be reversed, the conviction vacated, and a new trial ordered.

Jasen, J.

(dissenting). CPL 710.30 establishes a mechanism whereby the voluntariness of statements made by a defendant to public servants can be tested at a hearing held in advance of trial. Whenever the prosecution intends to offer evidence of such statements at trial, it is required, in order to set the procedure in motion, to serve the defendant with a notice of its intention, specifying the evidence intended to be offered. (CPL 710.30, subd 1.) To give the defendant a reasonable opportunity to move to suppress the statement, the notice must ordinarily be served before trial. "For good cause shown”, however, the court may permit the prosecution to serve the notice during the trial, provided the defendant is given a reasonable opportunity to make his suppression motion. (CPL 710.30, subd 2.) If the statutory procedure is not complied with, the evidence of the defendant’s statements may not be admitted at the trial, except if the defendant, without benefit of notice, made an unsuccessful motion to suppress the statements. (CPL 710.30, subd 3.)

In this case, the defendant was charged with the misdemeanor of leaving the scene of an automobile accident in which damage to property was sustained without making a report. (Vehicle and Traffic Law, § 600.) At the trial, the prosecution sought to introduce the testimony of Detective George Moore, a member of the New York City Police Department, that the defendant had made certain admissions to him while being questioned at the station house. Due to an inadvertent oversight in the District Attorney’s office, the required notice of intent was not served until after the defense interposed an objection to this portion of the officer’s testimony. The trial court, exercising the discretion accorded it by CPL 710.30 (subd 2), found that there was good cause to permit the prosecution to serve the notice during trial. A suppression hearing was held, the statements were found to have been made voluntarily, and the defendant was convicted. The judgment of conviction was affirmed, without opinion, by the Appellate Term. A majority of this court would find that good cause did not exist to permit the late service of notice and that a new trial is necessary. I disagree. The requirements of CPL 710.30 were duly complied with and, accordingly, the order of the Appellate Term should be affirmed.

At the trial, Detective Moore testified that he had arrested the defendant and had advised him of his Miranda rights. Defense counsel objected to the admission of any statements made to the officer primarily upon the ground that the statutory notice had not been served. The trial assistant stated that he could "ask the Officer to step down and serve notice at this time and ask for a continued trial which I’d like to do it later.” After a side-bar conference, the trial assistant informed the court that he had conferred with defense counsel and was directing Detective Moore "to discuss thoroughly and fully and candidly all statements made to him by the defendant with the defendant’s attorney.” The trial assistant was then permitted to serve notice of intent to offer statements made to a public servant and the trial was then adjourned in order to give defense counsel the opportunity to interview Detective Moore.

After court was called back into session, the defense counsel took the position that, although the court had already continued the trial once and the defense did not want any further adjournments, "the statement cannot be used against us, and that defect cannot be cured with any amount of adjournments.” The court, relying on the discretionary authority conferred by CPL 710.30 (subd 2), permitted the late service of notice, "knowing that there’s no continuity or change in the Officer or District Attorney’s—such as this Assistant being aware of the fact that his prior associate may have or may have not served you. I’m sure if he had such continuity here, he would have served you this morning and in all possibilities, the case could have been adjourned prior to trial. But I’m going to allow him to have served you with that notice as he did earlier and ask you again if you desire an adjournment or do you wish to proceed now.” The defense counsel replied that, "I do not desire an adjournment. I don’t think that’s the nature of the defect.” The court then proceeded to hold the required suppression hearing.

The notice of intent provision is not a discovery device. Rather, its function is to set into operation the statutory procedure for a pretrial hearing on the issue of voluntariness. (People v Harris, 25 NY2d 175, 177, affd 401 US 222; People v Lee, 27 AD2d 700.) Although the required notice generally should be given prior to trial, the statute recognizes that there may be circumstances in which the notice may be properly served during the trial. CPL 710.30 (subd 2) authorizes the trial court, in its discretion, to permit a later service of notice, if good cause is shown and if the defendant is given a reasonable opportunity to make his suppression motion.

In this case, there was a basis in the record from which the trial court could properly conclude that there was good cause to permit the late service of notice. There was an apparent administrative oversight in the District Attorney’s office. The two cases relied upon by the majority—Santobello v New York (404 US 257) and Giglio v United States (405 US 150)—involve situations in which the conduct of prosecution amounted to bad faith. In Santobello, one trial assistant promised, in conjunction with a plea bargain, that the prosecution would not make any recommendations as to sentences. Despite this promise, another prosecutor recommended that the Judge impose the maximum sentence of imprisonment. (404 US, at p 259.) In Giglio, one prosecutor promised a coconspirator that he would not be prosecuted if he co-operated with the government. At trial, another prosecutor argued to the jury that no promises of immunity had been made at all. (405 US, at pp 152-153.) Quite obviously, in both Santobello and Giglio, the conduct of the prosecution, taken as an entity, was in violation of its own prior assurances and resulted in severe prejudice to the defendant. In the present case, there was an administrative or clerical mistake in the District Attorney’s office. There was no bad faith and the defendant’s case was not impaired as a result of the oversight. The error was not caught until several hours after the trial had commenced. Had the discovery been made just a few hours earlier, prior to the commencement of trial, there would have been full statutory compliance. In any event, upon discovery of the error, the trial court took appropriate action to protect the defendant’s rights. Defense counsel was offered whatever time he required to prepare for the suppression hearing. On the other hand, defense counsel twice refused to accept the offer of additional preparation time, insisting that no amount of adjournments could cure the defect and choosing to stand on the technical "nature of the defect”. The defendant did not contend and does not argue now that the late notice of intent prevented him from conducting a full and fair cross-examination of the police officer. The defendant cannot point to any additional matter that he would bring out on cross-examination if given another chance.

Where a defendant has been given ample time and can assert no claim of other prejudice, it is gamesmanship of the highest order to set aside a conviction on the basis of, what is at worst, a technical defect. The sting of any possible prejudice to the defendant was removed when the court adjourned the trial in order to give the defense an adequate opportunity to prepare for the suppression hearing. In a nonjury case, the defense cannot be hampered if the court grants an adjournment of reasonable length for this purpose. (People v Herman, 50 Misc 2d 644, 646-647.) While the granting of an adjournment for a substantial period of time poses obvious hazards where a jury is to resolve the issue of guilt, similar dangers are not present where the court is the trier of fact. It is significant that the defendant did not argue that the statement was made involuntarily and has failed to establish that he was prejudiced by the failure to send a pretrial notice. Even now, the defendant does not seek to have this court set aside his conviction on the ground that his statements were made involuntarily. (See People v Ross, 21 NY2d 258, 262.) Under these circumstances, it cannot be said that the trial court abused its discretion as a matter of law. Accordingly, its decision to permit the late service of notice should not be set aside. (See, e.g., People v Crimmins, 38 NY2d 407; People v Fein, 18 NY2d 162, 169, remittitur amd 18 NY2d 722, cert den 385 US 649, remittitur amd 19 NY2d 691, rehearing den 386 US 978; Cohen and Karger, Powers of the New York Court of Appeals, § 198, subd [b], p 745.)

It is quite ironic that the conviction of this defendant is to be reversed based on the literal wording of a statute designed to give him a reasonable opportunity to prepare for a hearing, when, in fact, he had ample preparation time and had refused the court’s offer of more time. A trial should not be a game of chance in which the opposing players collect chips which are to be cashed in on appellate review. Rather than seeking to score points with technicalities, trial counsel should primarily concern themselves with insuring that the fundamental legal rights of their clients are protected. In this case, there was sufficient compliance with the statutory procedures and the defendant received all he was entitled to under the statute—a reasonable time to prepare for the hearing. I would affirm the order of the Appellate Term.

Judges Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur with Chief Judge Breitel; Judge Jasen dissents and votes to affirm in a separate opinion.

Order reversed, etc. 
      
       Decision on the motion to suppress was reserved until the conclusion of the trial. After both sides had rested their case, the trial court found that the police officer’s testimony was admissible and denied the suppression motion. After listening to the arguments from counsel, the court subsequently found the defendant guilty as charged.
     