People v. Figliolo

—Appeal from judgment, Supreme Court, New York County (Angela M. Mazzarelli, J., at suppression hearing; Patricia Anne Williams, J., at trial and sentence), rendered February 18, 1992, convicting the defendant, after a jury trial, of grand larceny in the second degree and burglary in the third degree, and sentencing him, as a second felony offender, to concurrent indeterminate terms of imprisonment of from 3 to 6 years on the grand larceny count and 2 to 4 years on the burglary count, held in abeyance, and the matter is remitted to the trial court for a new hearing on the defendant’s motion to suppress statements on the ground that they were the product of an arrest which was not supported by probable cause. The defendant was indicted for the crimes of grand larceny in the second degree and burglary in the third degree stemming from the theft of certain artwork from the World Trade Center. According to the People, the defendant voluntarily accompanied the police to the World Trade Center for questioning at 12:00 p.m. on October 18, 1990, when they confronted him in a union hall on East 42nd Street. In their Voluntary Disclosure Form, they asserted that the defendant was not arrested until 6:00 p.m. that evening, after he had made inculpatory statements. Purportedly based on this representation, defense counsel moved to suppress the statements on the sole ground that the defendant had not been advised of his constitutional rights pursuant to Miranda v Arizona (384 US 436). He did not allege that the statements were the product of an illegal detention. The Supreme Court ordered a hearing. Detective Sam Nordmark of the Port Authority Police Department testified that he approached the defendant at the building on 42nd Street at 12:00 p.m. and, after advising him that he was investigating a burglary, told him that "he has to report down to the World Trade Center for some questioning”. The defendant was placed in handcuffs and was driven to the World Trade Center where he was searched. He was then advised of his constitutional rights from a printed card. Nordmark added that although the defendant was a suspect and was not free to leave, he was not formally placed [680] under arrest until 6:00 p.m., after he made inculpatory statements. The Supreme Court, concluding that the statements were voluntarily made after the defendant was properly advised of, and waived, his constitutional rights, denied the defendant’s motion to suppress. Defense counsel then moved for reargument of the court’s decision and for a hearing to determine whether the statements must be suppressed as the product of an illegal arrest. He maintained that based on the hearing testimony, the defendant was not arrested at 6:00 p.m., as indicated on the Voluntary Disclosure Form, but rather, at 12:00 p.m. on 42nd Street. Since his arrest was not supported by probable cause, counsel argued that the statements must be suppressed as the fruit of the poisonous tree. The Supreme Court denied both prongs of the defense motion. As to a further hearing, the court found the motion untimely since the facts surrounding the defendant’s detention were known to the defense at the time it filed its omnibus motion or at the latest, at the time the initial hearing took place. Nevertheless, the court considered the merits but still denied the motion. Based on the hearing record, the court concluded that despite being handcuffed, the defendant voluntarily accompanied the police to the World Trade Center, where he was not arrested until after he made the statements in question. The statements were thus found not the fruit of an illegal arrest. Contrary to his testimony at the hearing, at trial, Detective Nordmark testified that when he approached the defendant and handcuffed him at the 42nd Street location, he told him he was under arrest. When confronted with his earlier testimony, Nordmark stated that he was not prepared at the hearing but had reviewed all his notes for trial. He repeated that he arrested the defendant at 12:00 p.m. but then added that he “officially” arrested him by booking him at 6:00 p.m. After Detective Nordmark’s testimony, defense counsel moved to reopen the hearing based on his conflicting statements. The trial court, believing it lacked the authority to take any remedial action, declined to “overrule” the hearing court. At the next court appearance, the Trial Judge indicated that after further review, she was adhering to her decision denying the motion to reopen the hearing to determine the issue of probable cause. Although she had acknowledged the inconsistencies in Nordmark’s testimony at the last court [681] appearance, she now stated that "virtually all of the circumstances that were presented before [the hearing court] were presented here as well”. This, of course, overlooks the detective’s concession at trial that he had testified incorrectly at the hearing. The defendant was convicted. Prior to sentencing, defense counsel’s motion to set aside the conviction on the ground that the defendant’s arrest was not supported by probable cause and that the statements should have been suppressed as the fruit of this illegal arrest was denied. On appeal, the defendant challenges only the trial court’s denial of his motion to reopen the suppression hearing after Nordmark’s testimony. We find that under the circumstances presented, it was an improvident exercise of discretion to have denied the defendant’s motion. Although a motion to suppress evidence should be made within 45 days after arraignment, the court may grant additional time upon application of the defendant prior to entry of judgment (CPL 255.20 [1]; 710.40 [1]). In addition, CPL 710.40 (4) gives a trial court discretion to reopen a suppression hearing before or during trial "upon a showing by the defendant, that additional pertinent facts have been discovered by the defendant which he could not have discovered with reasonable diligence before the determination of the motion”. Nordmark testified at trial that he was unprepared at the hearing to explain the many inconsistencies in his testimony. After testifying at the hearing that he did not arrest the defendant until after he made inculpatory statements at the World Trade Center, Nordmark stated at trial that he told the defendant that he was under arrest at the union hall, prior to any questioning. Thus, clearly, the arrest was prior to any statement of the defendant and could not have been based upon it. It has been the People’s position that probable cause to arrest had been supplied by the defendant’s pre-arrest statement. That obviously cannot be so. The trial court was mistaken in its belief that it lacked the authority to grant defense counsel’s motion to reopen the hearing. Such procedure is authorized by statute (CPL 710.40 [4]), as well as by case law recognizing the discretion of a trial court to reopen a suppression hearing based on evidence adduced at trial which indicates that substantial rights of the defendant may have been affected (see, e.g., People v Corso, 135 AD2d 551, 553; People v Dymond, 130 AD2d 799; People v Brigante, 115 AD2d 547; People v Perez, 104 AD2d 454; People v Ricks, 96 AD2d 788; People v Stroud, 63 AD2d 721). [682] On the record before us, it is impossible to determine whether there was sufficient evidence, in the absence of the defendant’s statements, to support a finding of probable cause (see, People v Ricks, supra; cf., People v Corso, supra). The issue must, therefore, be resolved after a full examination of the facts at a reopened suppression hearing (see, People v Brigante, supra; People v Perez, supra; People v Ricks, supra). Concur—Rosenberger, Ross, Rubin and Williams, JJ.