People v. SmothersPeople v. Smothers
Defendant Quandel Smothers has moved before this court for an order, pursuant to
The People oppose the motion and urge this court to permit such testimony because they claim that, where a witness makes an out-of-court identification which is inadmissible at trial (i.e., a photographic identification),
Upon due consideration of all of the parties’ submissions and after hearing oral argument thereon, the court holds that the motion is granted, for the reasons previously stated on the record on March 27, 2008 and as further discussed herein.
Factual and Procedural Background
The defendant herein stands charged with attempted murder and various counts of assault and possession of a firearm, following a shooting which occurred on August 7, 2007, in Brooklyn, Kings County, and caused serious injuries to the victim, Mazi Worthy.
The defendant was subsequently arrested on August 10, 2007, and was arraigned upon a felony complaint in Criminal Court the following day. The Criminal Court file jacket reflects the service upon the defense of notice pursuant to
On August 29, 2007, the instant indictment was filed, and on September 14, 2007, the defendant was arraigned thereon. At the defendant’s Supreme Court arraignment, the District Attorney served
The document, captioned, “Notice Pursuant to
“Please take notice that the People intend to offer on their direct case at trial of this action testimony regarding an observation of the defendant either at the time and place of the commission of the offense*656 or upon [such] other occasion relevant to the case by a witness who has previously identified the defendant(s), as specified below.”
Set forth directly below in these notices is the recitation of “ID Witness,” Mazi Worthy’s “positive” photographic array identification.
Significantly, the
Regarding such notice,
“1. Whenever the people intend to offer at a trial (a) evidence of a statement made by a defendant to a public servant . . . , or (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 . . .
“3. In the absence of service of notice upon a defendant as prescribed in this section, no evidence of a kind specified in subdivision one may be received against him upon trial unless he has, despite the lack of such notice, moved to suppress such evidence and such motion has been denied and the evidence thereby rendered admissible as prescribed in subdivision two of section 710.70” (emphasis supplied).
Thus, defendant Quandel Smothers stresses that he is moving this court for an order precluding the People from introducing at trial any identification testimony of the unnoticed witness, Stofaney Worthy, and not for suppression of identification
The People have opposed this motion and maintain that, although they failed to serve notice pursuant to
Legal Discussion
“CPL 710.30 is a notice statute intended to facilitate a defendant’s opportunity to challenge before trial the voluntariness of statements made by him, and the reliability of his identification by others. Thus, . . . whenever the People intend to offer evidence of defendant’s statements to a public officer or testimony of observations of defendant, they must serve notice of such evidence on defendant within 15 days of arraignment[* ] and before trial” (People v Lopez,84 NY2d 425 , 428 [1994] [citations omitted]).
The People readily admit here that they never provided the defense with any notice that Stofaney Worthy would testify on their direct case that the defendant was the person who shot her husband or that she had positively identified him as such from a photographic array. Rather, citing to People v Grajales (
In Grajales, the victim of a robbery had initially identified the defendant at the police station from a photographic array as being one of the perpetrators. One week later, the victim saw the defendant on the street and pointed him out to the police, who thereupon arrested him. Thereafter, the People served
The Court of Appeals affirmed, stating that “
In urging this court to deny preclusion, the People assert that the Grajales holding, which “rests on a matter of simple statutory interpretation,” should not be limited to its specific facts. This court does not agree.
Grajales did not expressly overrule any of the Court of Appeals prior precedents interpreting or applying the notice and preclusion rules of
What this court interprets Grajales as stating is that where the pretrial identification procedure is one that would not be admissible at trial on the People’s case-in-chief, such as a photographic array, it is that identification procedure that need not be noticed. However, since in Grajales notice was given of the intention to present identification testimony through a witness who had made a prior, out-of-court identification, there was compliance with the statute and preclusion was not warranted. Here, by contrast, no notice whatsoever was provided
It seems clear, upon a plain reading of the statute, that notice must always be given of the People’s intention to present identification/observation testimony by a witness “who has previously identified [the defendant as the perpetrator]” and that the People must specify “the evidence intended to be offered” (
This conclusion is consonant with the literal language of the statute as well as its intent. As noted, the statute, read literally, obligates the People to serve notice that they “intend to offer” identification testimony from a witness who previously identified the defendant (this clearly includes Stofaney Worthy) and further obligates them to “specify” the identification evidence they intend to offer. The People did neither here, in stark contrast to Grajales, whose facts are distinguishable. There, the defense was given notice that the eyewitness in question had participated in at least one out-of-court identification procedure but not both. Thus, in Grajales the case turned on the nature and extent of the notice given; failure to provide notice was never in issue.
The People’s position is likewise rebutted by the statute’s intent. The statute’s promulgation
“ ‘was ... a legislative response to the problem of suggestive and misleading pretrial identification procedures treated by the [United States] Supreme Court in Gilbert v California, United States v Wade and Stovall v Denno’ . . .CPL 710.30 sets forth a procedure to provide notice to a defendant who might otherwise be unaware that the People are in possession of such evidence and thus allows the defendant to test the reliability of the identification before trial” (People v White,73 NY2d 468 , 474*660 [1989], cert denied493 US 859 [1989] [citations omitted]).
In fact, the Supreme Court in United States v Wade (
Significantly, by contrast to corporeal procedures, the accused is not present at a photographic identification procedure. Thus, it is likely that an attorney may not learn of the pretrial procedure before trial. The People do not dispute, nor does the holding in Grajales refute, a defendant’s right to litigate the constitutionality of any identification procedures, or to contest the due process prohibition against undue suggestiveness.
In conclusion, since the People provided no notice that the prosecution intended to present testimony by Stofaney Worthy of her observations of the defendant as the person who shot her husband, where Mrs. Worthy had identified the defendant from a photographic array, the motion to preclude must be granted.
Accordingly, Stofaney Worthy shall be precluded from testifying as to any observations she may have made of the defendant, and thus she will not be permitted to identify the defendant in court as her husband’s shooter.
Notes
Timely service of notice is not here in issue.