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THE ADMISSION OF AN UNNOTICED STATEMENT BY DEFENDANT WAS NOT HARMLESS ERROR; ALTHOUGH THE PEOPLE HAD DISCLOSED THE INTERVIEW IN WHICH THE STATEMENT WAS MADE, THEY DID NOT DISCLOSE THE SPECIFIC STATEMENT; THE DEFENDANT MOVED TO PRECLUDE THE STATEMENT AT TRIAL (FIRST DEPT).

The First Department, reversing defendant’s convictions, determined the evidence defendant knew the codefendant was armed and shared the codefendant’s intent to cause serious injury was legally insufficient. Although the robbery second conviction was based on legally sufficient evidence, an unnoticed statement was allowed in evidence at trial, a reversible error:

… [D]efendant is entitled to a new trial on the second-degree robbery count. The People should not have been permitted to submit evidence of defendant’s August 9, 2016 statement to a detective regarding defendant’s discussion with the victim about the value of the latter’s jewelry because this statement was not properly noticed pursuant to CPL 710.30(1)(a). Although the People disclosed the interview generally, they did not disclose this particular statement … . At a suppression hearing, defendant only moved to suppress other statements not at issue on appeal, and the statement at issue was first revealed during trial testimony, at which time defendant moved for preclusion on the ground of lack of notice. People v Weathers, 2023 NY Slip Op 00741, First Dept 2-9-23

Practice Point: If the People attempt to introduce a statement made by the defendant which was not provided in the CPL 710.30 notice, and no motion to suppress the statement had been made, introduction of the statement at trial must be precluded. In this case, it was not enough that the People disclosed the interview from which the statement was taken. No notice of the specific statement had been provided.

 

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