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People v. Laing

79 N.Y.2d 166 Court N.Y. Decision date 1992-02-20 English

Delivered by Bellacosa, J.

Contents

Majority

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The People of the State of New York, Appellant, v Lemont Laing, Respondent. The People of the State of New York, Appellant, v Todd Wade, Respondent.
Argued January 15, 1992;
decided February 20, 1992
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POINTS OF COUNSEL
Richard A. Brown, District Attorney, Queens County (Andrew Zwerling of counsel), for appellant in the first and second above-entitled actions.
The orders suppressing identification evidence pursuant to CPL 710.30 are appealable. (People v Rumpel, 111 AD2d 481 ; People v O'Sullivan, 121 AD2d 658 ; People v Hernandez, 146 AD2d 646 ; People v Evans, 58 NY2d 14 ; People v Coppa, 45 NY2d 244 ; United States v Scott, 437 US 82 ; People v Sullivan, 142 AD2d 695 ; People v Morales, 69 AD2d 536 ; People v Giles, 73 NY2d 666 ; People v Baker, 64 NY2d 1027 .)
David M. Cherubin for respondent in the first above-entitled action.
The People cannot appeal an order made pursuant to CPL 710.30 because the Legislature has chosen not to authorize such an appeal. (Croveno v Atlantic Ave. R. R. Co., 150 NY 225 ; People v Kearse, 58 Misc 2d 277 ; People v De Jesus, 54 NY2d 447 ; People v Santos, 64 NY2d 702 ; People v Coppa, 45 NY2d 244 ; Matter of Santangello v People, 38 NY2d 536 ; Matter of Ryan [Hogan], 306 NY 11 ; People v Rossi, 5 NY2d 396 ; Matter of State of New York v King, 36 NY2d 59 ; People v Zerillo, 200 NY 443 .)
David Louis Cohen for respondent in the second above-entitled action.
The order precluding identification evidence pursuant to CPL 710.30 is not appealable by the People. (People v Taylor, 65 NY2d 1 ; People v Rivera, 73 AD2d 528 ; People v O'Doherty, 70 NY2d 479 ; People v Boughton, 70 NY2d
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854 ; People v White; 73 NY2d 468 ; People v Brown, 140 AD2d 266 ; People v Coppa, 45 NY2d 244 ; People v Santos, 64 NY2d 702 ; People v Rumpel, 111 AD2d 481 ; People v O'Sullivan, 121 AD2d 658 .)
Christine Duisin, Assistant Attorney-General, for New York State District Attorneys’ Association, amicus curiae, in the first above-entitled action.
Orders issued pursuant to CPL 710.30 are appealable. (People v White, 73 NY2d 468 ; Matter of Bath & Hammondsport R. R. Co. v New York State Dept. of Envtl. Conservation, 73 NY2d 434 ; Ferres v City of New Rochelle, 68 NY2d 446 ; Berger v Heckler, 771 F2d 1556 ; Matter of Sutka v Conners, 73 NY2d 395 ; People v McDonald, 68 NY2d 1 ; People v Coppa, 45 NY2d 244 ; Matter of Long v Adirondack Park Agency, 76 NY2d 416 ; Matter of Town of New Castle v Kaufmann, 72 NY2d 684 ; Doctor’s Council v New York City Employees’ Retirement Sys., 71 NY2d 669 .)
Robert M. Morgenthau, District Attorney (Mark Dwyer of counsel), for New York County District Attorney, amicus curiae, in the first and second above-entitled actions.
The People have the right to appeal a preclusion order entered pursuant to CPL 710.30. (People v O’Doherty, 70 NY2d 479 ; People v White, 73 NY2d 468 ; People v Weaver, 49 NY2d 1012 ; People v Berrios, 28 NY2d 361 ; People v Gissendanner, 48 NY2d 543 ; People v Taylor, 65 NY2d 1 .)

OPINION OF THE COURT

In both of these cases, the People claim that CPL 450.20 (8) authorizes them to appeal to the Appellate Division from trial orders precluding the introduction of identification evidence for failure to comply with CPL 710.30’s timely notice provision. We affirm the orders of the Appellate Division dismissing the People’s appeals to that court (People v Laing, 168 AD2d 635 ; People v Wade, 170 AD2d 468 ), because CPL 710.30 orders are not among the enumerated authorizations in CPL 450.20 and because there is no interpretative alternative to that exclusive route for a People’s appeal.

Defendant Laing was arrested on November 15, 1988 in connection with a robbery and stabbing of a gas station attendant nine days earlier in Queens. On the day of arrest, the police showed the victim a single photograph of defendant from which an identification was made. At arraignment,

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defendant received a CPL 710.30 (1) (b) notice, along with the District Attorney’s Voluntary Disclosure Form reflecting the victim’s identification. After a Wade hearing, Supreme Court granted defendant’s motion to suppress the identification. Prior to jury selection, the People alerted defendant that they had learned of another witness to the crime who had also identified defendant from a single photograph approximately one week after the crime. The prosecutor argued that neither a CPL 710.30 notice nor a Wade hearing were required because that identification was confirmatory. The trial court disagreed and precluded the additional witness’s identification testimony. The People filed an appeal from that order to the Appellate Division.

Defendant Wade was charged with criminal sale of a controlled substance, third degree, based upon his alleged sale of crack cocaine to an undercover police officer in Queens. Following the criminal exchange, the defendant was identified at the scene by the undercover officer. At arraignment, defendant was served with a Voluntary Disclosure Form but not with a CPL 710.30 notice. Prior to any suppression hearings, Supreme Court granted defendant’s motion to preclude the use of the undercover officer’s identification testimony on the ground that the People had failed to serve the required CPL 710.30 (1) (b) notice of the showup identification. The court rejected the People’s arguments that the Voluntary Disclosure Form constituted adequate notice to satisfy CPL 710.30 and that the identification was merely confirmatory. The People filed an appeal from the order to the Appellate Division.

The Appellate Division dismissed both appeals, holding that CPL 450.20 (8) does not authorize appeals by the People from CPL 710.30 preclusion orders, and that in the absence of enumerated authorization in the statute, the People may not appeal such orders. A Judge of this Court granted permission to appeal in each case to the People.

CPL 710.30 requires that within 15 days after arraignment and before trial the People must serve upon the defendant notice of their intention to offer at trial "testimony regarding an observation of the defendant either at the time or place of the commission of the offense or upon some other occasion relevant to the case, to be given by a witness who has previously identified [the defendant].” (CPL 710.30 [1] [b].) Failure to give timely notice mandates precluding the People from offering such evidence at trial, with two exceptions not

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applicable here (see, CPL 710.30 [2], [3]). The CPL 710.30 notice requirement facilitates the opportunity for defendants to test the reliability of the People’s proposed identification testimony prior to trial (People v Newball, 76 NY2d 587 , 591; People v White, 73 NY2d 468 , 474, cert denied 493 US 859 ). A 1976 amendment to CPL 710.30 (L 1976, ch 194, § 3) pinpointed the time for serving notice from "before trial” to "within fifteen days after arraignment and before trial”. This change, along with conforming changes to the omnibus pretrial motion provisions, was designed to further another goal of CPL 710.30 — "the orderly, swift and efficient determination of pretrial motions” (People v O’Doherty, 70 NY2d 479 , 488). This Court has recognized that "[t]he exclusionary sanction for failure to comply contained in CPL 710.30 (3) reflects a [legislative] judgment that the loss of the use of the evidence is an acceptable price to pay to achieve the desired goals.” (People v O'Doherty, supra, at 488-489 .)

CPL article 450 governs appealability of orders in criminal proceedings. CPL 450.20 delineates the instances in which the People may appeal as of right to an intermediate appellate court. Significantly absent is any authorization for a People’s appeal from an order precluding evidence pursuant to CPL 710.30. It is fundamental that in the absence of a statute expressly authorizing a criminal appeal, there is no right to appeal (People v De Jesus, 54 NY2d 447 , 449; Matter of Santangello v People, 38 NY2d 536 , 538-539; Matter of State of New York v King, 36 NY2d 59 , 63; People v Zerillo, 200 NY 443 , 446). This principle recognizes the Legislature’s policy prerogative "to limit appellate proliferation in criminal matters” (Matter of State of New York v King, supra, at 63 ).

The People contend, nevertheless, that CPL 450.20 (8) should be interpreted to authorize a People’s appeal from a CPL 710.30 preclusion order by, in effect, melding CPL 710.30 with CPL 710.20 suppression orders, for which an appeal is explicitly allowed. CPL 450.20 (8) authorizes a People’s appeal from "[a]n order suppressing evidence, entered before trial pursuant to section 710.20. ” (Emphasis added.) Section 710.20 allows a defendant to move to suppress evidence on several grounds, including improper pretrial identification procedures (CPL 710.20 [6]), but not including failure to provide timely notice as required by CPL 710.30.

Courts must construe clear and unambiguous statutes as enacted and may not resort to interpretative contrivances to

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broaden the scope and application of statutes (Matter of Alonzo M. v New York City Dept of Probation, 72 NY2d 662 , 665; see also, Matter of Holtzman v Goldman, 71 NY2d 564 , 570-573; People v Douglass, 60 NY2d 194 ). This is especially so in one of the most highly structured and highly particularized articles of procedure — appeals. Where a statute delineates the particular situations in which it is to apply, " ' "an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded” ’ ” (Matter of Alonzo M. v New York City Dept. of Probation, 72 NY2d 662 , 665, supra, quoting Patrolmen’s Benevolent Assn. v City of New York, 41 NY2d 205 , 208-209). The words and numerical references and incorporations in CPL 450.20 could not be plainer — the Legislature left CPL 710.30 preclusion orders out of the People’s appeal authorization section.

The People, and amici curiae who favor the People’s view of the issue, argue that CPL 450.20 (8) should be interpreted "broadly” to permit appeal of any trial order which results in the unavailability of evidence, including those for CPL 710.30 notice violations. They urge that appellate courts should, for the limited purpose of CPL 450.20 (8) appealability, treat CPL 710.30 preclusion orders as if they were CPL 710.20 suppression orders inasmuch as failure to give timely notice provides an additional ground for, in effect, seeking suppression of such evidence. Their argument concludes that the list of grounds for suppression contained in CPL 710.20 is not meant to be all-inclusive.

The argument cannot be sustained. This Court has recognized in an analogous context that "[t]he People’s failure to provide timely notice of intent is not one of the grounds for a suppression motion under CPL 710.20. Nor is the notice requirement a mere ingredient of a motion to suppress statements or identifications under [CPL 710.20 (3) or (6)]. By definition, CPL 710.30 operates independently, in advance of the suppression motion. The [CPL 710.20] motion to suppress does not become necessary unless and until the court allows the defaulting prosecutor to provide late notice.” (People v Taylor, 65 NY2d 1 , 6.) While "CPL 710.30 is related to two of the constitutional bases for suppression under CPL 710.20— involuntary statements and improper identifications” (id., at 6), Taylor articulates a substantive and functional differentiation between CPL 710.20 and CPL 710.30 and clearly suggests that they are not interchangeable mechanisms.

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The People’s appeal to policy-driven judicial rewriting of the legislation would require us to read CPL 710.30 into CPL 710.20 and 450.20 (8) and, thus, to create a right to appeal out of thin air. The Legislature, for whatever reason, simply did not include the words and statutory numbers in its very detailed enactments. While the People and their amici are correct that the omission leaves them out of appeals court, " 'any arguments for a change in the practice, however persuasive, must be addressed to the legislature’ ” (Matter of Santangello v People, 38 NY2d 536 , 539, supra). In sum, this Court cannot rejigger the language or specific prescriptions of CPL 450.20 (8) to fill the People’s void, without trespassing on the Legislature’s domain and undermining the structure of article 450 of the CPL — the definite and particular enumeration of all appealable orders (see, People v O'Doherty, 70 NY2d 479 , 489, supra).

Finally, and for like reasons, we reject the People’s and the amici’s alternative suggestions that the Court should "look through” the labels of the trial courts’ CPL 710.30 preclusion orders and merely declare that the orders are really CPL 710.20 orders for appealability purposes. The trial orders of preclusion at issue in these cases are unquestionably based on the People’s failure to provide timely CPL 710.30 notice of intent to use identification evidence. They are plainly not CPL 710.20 suppression orders masquerading as CPL 710.30 preclusion orders, and we cannot blithely convert their nature and nomenclature for appeal convenience.

Since there is no statutory provision upon which an appeal from a CPL 710.30 preclusion order may be predicated in this exclusively regimented field, we conclude that the Appellate Division properly dismissed the People’s appeals.

Accordingly, the order of the Appellate Division in each case should be affirmed.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

In each case: Order affirmed.

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