New York Family Law Blog
New York Family Lawyer said in this juvenile delinquency proceeding, a boy moves to preclude the presentment agency from offering identification evidence at the fact-finding hearing on the ground that it failed to provide timely and adequate notice of its intention to do so as required.
A boy was charged on the instant petition which alleges that he committed acts which, if committed by an adult, would constitute the crimes of robbery in the second degree, grand larceny in the fourth degree and attempted assault in the third degree.
A New York Child Custody Lawyer said according to the appeal, the boy was one of a group of individuals who punched the complaining witness in the head and stole his hat and cell phone.
The court however paroled the boy to his mother and postponed the matter for a conference.
After fourteen days, the presentment agency served and filed a voluntary disclosure form which states that the canvas was done with complainant and two eyewitnesses with police. The complainant positively identified the boy. The voluntary disclosure form further provides that the identification occurred at the date, time and place of arrest, which is stated elsewhere in the form.
A Nassau County Child Lawyer said that after the receipt of the voluntary disclosure form, the boy requested to suppress the identification testimony or to have a Wade hearing. But, the motion was denied without prejudice to renew.
After that, the boy renewed his motion and the motion was granted, on consent, to the extent that a Wade hearing was ordered. The hearing was initiated with the direct testimony of the arresting police officer. The witness began his direct testimony by stating that the arrest and identification were made when the complainant pointed to and identified the boy.
Sources revealed that it was not clear from the officer’s brief testimony, as he variously stated that the boy and the complainant were in his car. At that point, the boy’s attorney asked if the witness could be excused and requested a continuance to file supplemental papers based on the said new information. The court granted the boy’s application for a Dunaway hearing and the matter was postponed.
Subsequently, the boy moved to preclude any identification testimony and argued that the presentment agency had failed to satisfy the legal notice requirements of the family court act.
Based on records, the family court act provides that whenever the presentment agency intends to offer at fact-finding hearing evidence, such agency must serve notice of such intention upon the offender within fifteen days of the initial appearance. In the absence of notice, no such evidence may be received against the offender at the fact-finding hearing unless he has, despite the lack of such notice, moved to suppress such evidence and such motion has been denied.
While conceding that the two locations are approximately one-half mile apart, the presentment agency maintains that the boy waived preclusion by moving to suppress identification testimony and that the boy was not prejudiced by any late notice since he was granted a Dunaway hearing as well as a continuance for further investigation and research when the discrepancy was revealed during the course of the Wade hearing.
The boy argues that he did not waive preclusion since there has been no denial of his suppression motion, the hearing having been postponed before completion. He further asserts that the court should deny his preclusion motion and he intends to withdraw his suppression motion.
The boy observes that even if he did not move for preclusion at the time he moved for suppression, it was not until the hearing and the arresting officer’s testimony that the alleged discrepancy in the notice was revealed.
In response, the presentment agency contends that the boy should not be permitted to withdraw his suppression motion for the sole stated purpose of avoiding a ruling that he waived preclusion upon seeking suppression.
Sources revealed that the boy does not allege and the record does not indicate any bad faith on the part of the presentment agency in providing an inaccurate location in their form.
The court also observed that the attorney appeared as surprised as the boy’s attorney when the arresting officer stated the exact location of the identification. Nor can the boy reasonably argue that he was prejudiced by the discrepancy since once it was elicited he was immediately granted the relief he requested a broadened hearing and a continuance.
The court stated that even if, as the boy points out, he could not have learned of it or any inadequacy in the notice prior to the hearing. Further, the minor discrepancy that was revealed at the hearing does not warrant the remedy of preclusion, particularly in light of the remedial relief granted to the boy before the hearing, upon discovery of the discrepancy.
The court further stated that it cannot be said that the notice was insufficient for describing the identification procedure as a canvass. The brief hearing testimony taken did not definitively establish, as the boy asserts, that the police conducted a show-up and not a canvass. Indeed, both procedures may have been used. Furthermore, logic would dictate that the arresting officer put the complainant and the two eyewitnesses in his patrol car and was conducting a canvass when call for by other officers where the boy had been apprehended by other officers.
The hearing was postponed before the testimony of the officer was concluded. Sources revealed that an improper denomination of the identification procedure without more does not render the notice defective.
Contrary to the boy’s contention, neither the family court act nor criminal procedure law can be reasonably interpreted to require completion of the hearing nor a ruling by the court before a waiver of preclusion becomes effective. A common sense reading of the statutes is that denial of the motion is referenced only because, if the motion was granted and the evidence suppressed, the remedy of preclusion would be unnecessary.
Based on records, the purpose of the notice requirement is to promote the fast resolution of pre-trial motions as well as to afford the boy a meaningful opportunity to investigate and challenge the evidence sought to be introduced. Where the boy is given that opportunity by being provided timely and adequate identification notice and is granted a suppression hearing, but then makes a considered decision to forfeit that opportunity by withdrawing his motion in the midst of testimony, purely for tactical reasons, he does so at his own risk since, at that point, the legal intent has been fulfilled, leaving the subject evidence no longer subject to suppression or preclusion.
The presentment agency is not precluded from offering identification evidence at the fact-finding hearing because the identification notice was sufficient to satisfy legal requirements. As a result, the boy waived the remedy of preclusion by his motion to suppress and may not withdraw his suppression motion for the purpose of nullifying the waiver.
Consequently, under the circumstances presented, the court, on its own motion, grants the presentment agency to leave to amend the identification notice in accordance with this order and decision. The court also grants the boy to leave to renew his suppression motion and continue the Wade/Dunaway hearing. If not, the court ordered that the matter shall be scheduled for a fact-finding hearing.
If someone threatened you or one of your family members and you want to seek order of protection against that person, you can ask legal guidance from the Bronx County Order of Protection Attorney. You can also have the legal representation of Bronx County Family Lawyer from Stephen Bilkis and Associates.