8.2 - B. Notice To Defendant Of Intention To Offer Evidence

• Jurisdiction: New York

B. Notice to Defendant of Intention to Offer Evidence

A defendant must be served with a notice of intention to offer evidence where the People plan to offer at trial either (1) evidence that the defendant made a statement that, if involuntarily made, would render the evidence thereof suppressible or (2) testimony about an observation of the defendant made at the time or place the offense was committed, or upon some other occasion relevant to the case, where such testimony will be given by a witness who has previously identified the defendant as the one who committed said offense.¹³⁹³ In this connection it is important to distinguish identification procedures which, if unduly suggestive, could result in conviction of the wrong person for commission of the crime, and those which could not. It is the former for which notice and hearing are required. “The danger sought to be avoided is, and always has been, the risk of convicting the innocent through tainted identification procedures.”¹³⁹⁴ If the procedure is not susceptible to taint, then “ ‘suggestiveness’ is not a concern and, hence, [CPL § 710.30] does not come into play.”¹³⁹⁵ If a defendant’s identification occurred spontaneously without police involvement a CPL § 710.30 notice is not required.¹³⁹⁶

Such notice must be served within 15 days after arraignment and before trial. Upon such service, the defendant must be accorded reasonable opportunity to move before trial to suppress the specified evidence.¹³⁹⁷ In the absence of service of such notice upon a defendant, no evidence of the kind described above may be received at trial.¹³⁹⁸ However, because the purpose of notice is to better enable a defendant to move to suppress specified evidence, a defendant who makes such a motion even in the absence of notice waives the remedy of preclusion. This is true regardless of whether the defendant moves to preclude and suppress simultaneously in the alternative¹³⁹⁹ or waits until the preclusion motion has been denied before making a motion to suppress.¹⁴⁰⁰

Similar notice and preclusion rules apply to intercepted communications and evidence derived therefrom.¹⁴⁰¹ New York rules for obtaining wiretaps do not apply to communications intercepted in Canada.¹⁴⁰² Prejudice must be shown to mandate suppression of court-ordered eavesdropping or video surveillance if timely statutory notice of an eavesdropping or video surveillance warrant is not timely given to a defendant named in the eavesdropping or surveillance warrant—within 15 days of arraignment. Where actual knowledge of the existence of the warrant is demonstrated within the time allowed for notification by the prosecution, formal written notice becomes ministerial. Suppression is not required. The defendant has already been assured his ability to challenge the legality of the warrant and the fruits thereof. Suppression is also not required where formal notice of the warrant is untimely but the defendant knew through counsel about the warrant. The failure of the People to comply with the notice requirement within 15 days after arraignment under CPL § 700.50(3) and CPL § 700.70 will not result in suppression where the defendant independently knew of the warrant within that time period. He must show that in some manner he nevertheless suffered prejudice. While they require scrupulous compliance, the notice statutes are not “gotcha” statutes.¹⁴⁰³

The courts have ruled that the purpose of CPL § 710.30 is to facilitate a defendant’s opportunity to challenge before trial the...