        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

945
KA 10-00801
PRESENT: SMITH, J.P., PERADOTTO, CARNI, AND LINDLEY, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ROOSEVELT ROBERTS, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Joseph E.
Fahey, J.), rendered December 8, 2009. The judgment convicted
defendant upon a jury verdict of, inter alia, criminal sale of a
controlled substance in the third degree.

     It is hereby ORDERED that the case is held, the decision is
reserved and the matter is remitted to Onondaga County Court for
further proceedings in accordance with the following Memorandum: On
appeal from a judgment convicting him upon a jury verdict of, inter
alia, criminal sale of a controlled substance in the third degree
(Penal Law § 220.39 [1]), defendant contends that County Court erred
in denying his preclusion motion with respect to a second set of
statements set forth in an allegedly untimely CPL 710.30 notice served
on him after his arraignment on a superseding indictment. Defendant
further contends that he was deprived of a full and fair opportunity
to contest the admissibility of those additional statements at a
hearing. Because we agree with defendant’s latter contention, we hold
the case, reserve decision, and remit the matter for a further Huntley
hearing on the admissibility of those additional statements.

     Initially, we reject the contention of the People that defendant
failed to preserve his contentions for our review. The grand jury
issued an indictment charging defendant with crimes similar to those
contained in the indictment before us on this appeal, and the People
provided a CPL 710.30 notice to defendant stating that they intended
to use at trial a statement that defendant had made at the scene of
his arrest. Defendant moved to preclude the admission of that
statement at trial, and the court held a hearing on the motion.
During that hearing, defendant also moved to preclude the additional
statements on the ground that they had not been included in the CPL
710.30 notice. The prosecutor conceded that defendant had not been
provided with a CPL 710.30 notice covering the additional statements.
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                                                         KA 10-00801

After the hearing, the court granted defendant’s motion to dismiss the
indictment based on the legal insufficiency of the evidence before the
grand jury.

     The matter was re-presented to another grand jury that issued the
superseding indictment at issue here and, in conjunction with that
superseding indictment, the People served a new CPL 710.30 notice that
included the additional statements. After defendant was arraigned on
the superseding indictment, the court issued an order denying
defendant’s motion to preclude the statement included in the first CPL
710.30 notice and, two days later, the court issued an amended order
denying defendant’s motion to preclude the additional statements,
determining, inter alia, that defendant had made those additional
statements spontaneously. In response to the court’s amended order,
defendant requested “new or additional hearings to address th[e]
admissibility of the[ ] additional statements.” In addition, at oral
argument on that request, defendant asserted that he had not been
afforded a sufficient opportunity to contest the admissibility of the
additional statements, particularly in light of the People’s
concession at the hearing that those additional statements had not
been included in the first CPL 710.30 notice. The court denied
defendant’s request and adhered to its determination that the
additional statements were admissible at trial. Consequently,
defendant’s contentions are preserved for our review because “the
court ‘was aware of, and expressly decided, the [issues] raised on
appeal’ ” (People v Collins, 106 AD3d 1544, 1546, quoting People v
Hawkins, 11 NY3d 484, 493; see generally People v Poole, 55 AD3d 1349,
1350, lv denied 11 NY3d 929).

     With respect to the merits, we conclude that the court properly
refused to preclude the additional statements included in the CPL
710.30 notice served by the People after the superseding indictment
was filed (see People v Rivers, 67 AD3d 1435, 1436, lv denied 14 NY3d
773, reconsideration denied 14 NY3d 892; see People v Littlejohn, 184
AD2d 790, 790-791, lv denied 81 NY2d 842). “Those [statements] were
not referenced in the CPL 710.30 notice that was served in connection
with the original indictment, but the record establishes that the
People filed the superseding indictment out of necessity after the
court dismissed . . . the original indictment” (Rivers, 67 AD3d at
1436). We agree with defendant, however, that the court erred in
determining the admissibility of the additional statements without
reopening the Huntley hearing and affording defendant a further
opportunity to contest their admissibility. The court concluded that
the statements were spontaneously made and therefore not subject to
suppression. At the time of the Huntley hearing conducted in
conjunction with the initial indictment, however, the only issue
before the court with respect to the additional statements was whether
they should be precluded on the ground that they had not been included
in the first CPL 710.30 notice. Consequently, inasmuch as the
voluntariness of the additional statements was not at issue at that
time, defendant had no reason or opportunity to explore the issues of
spontaneity or the effect of the previously-given Miranda warnings, or
to raise any other issues regarding the admissibility of those
statements. Thus, “the hearing must be reopened” to afford him that
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                                                        KA 10-00801

opportunity (People v McGee, 155 AD2d 878, 879; see People v Tindal,
92 AD2d 717, 717).




Entered:   October 4, 2013                     Frances E. Cafarell
                                               Clerk of the Court
