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Reopening of Suppression Hearing to Address Deficiency in People’s Case (Pointed Out by the Defense in Post-Hearing Papers) Okay (But See People v Kevin W, 187, Ct App 11-21-13)

The First Department determined the suppression court properly allowed the suppression hearing to be reopened to address a deficiency in the People’s case:

The court providently exercised its discretion in reopening the suppression hearing, after both sides had rested and submitted legal arguments but before any decision on the merits had been made, to allow the People’s witness to provide additional testimony establishing the legality of the police conduct … . “A request to present additional evidence in this type of situation should be addressed to the court’s discretionary power to alter the order of proof within a proceeding …, rather than being governed by the restrictions on rehearings set forth in People v Havelka (45 NY2d 636 [1978])” (id. at 481).

Defendant argues that since the reopening came after defense counsel had pointed out a deficiency in the People’s case, there was a heightened risk of tailored testimony. However, “one of the purposes of requiring timely and specific motions and objections, a requirement applicable to suppression hearings, is to provide the opportunity for cure … . It would be illogical to require a defendant, for preservation purposes, to point out a deficiency at a time when it can be corrected, but then preclude the People from correcting the deficiency. In Whipple, the Court of Appeals disapproved of such a notion, which it described as “a sort of gotcha’ principle of law” (97 NY2d at 7).  People v McCorkle, 2013 NY Slip Op 07835, 1st Dept. 11-26-13

 

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