Opinion
February 5, 1996
Appeal from the Supreme Court, Kings County (Kreindler, J.).
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the hearing court did not improvidently exercise its discretion when it denied his application to expand or reopen the Dunaway hearing. At the time of the defendant's arrest on the instant charges at 3:35 A.M. on April 30, 1992, he had been in police custody on an unrelated charge since 9:45 A.M. on April 29, 1992. While it is true the People had the burden of going forward to establish the legality of police conduct in the first instance (see, People v Di Stefano, 38 N.Y.2d 640, 652; Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 710.60, at 278, 280-281), the defendant was required to provide the People with "reasonable notice" of his suppression claim (CPL 710.60) in order to protect the People from unfair surprise (see, People v Mezon, 80 N.Y.2d 155, 160). Here, the defendant's omnibus motion merely challenged the legality of his arrest on April 30, 1992. He did not challenge the legality of his arrest on April 29, 1992, until the hearing court rendered its findings of fact following the Dunaway hearing. To reopen or expand the hearing at this late date would have resulted in undue prejudice to the People. Moreover, because the defendant was expected to have knowledge of the circumstances surrounding his arrest on the morning of April 29, 1992 (see, People v. Toxey, 220 A.D.2d 204; People v. Mitchell-Benitez, 168 A.D.2d 994), he failed to raise any pertinent new facts warranting an expansion or reopening of the Dunaway hearing (see, CPL 710.40, [4]).
The trial court did not err in failing to give a circumstantial evidence charge because the defendant's conviction was based on both direct and circumstantial evidence (see, People v. Daddona, 81 N.Y.2d 990, 992; People v. Licitra, 47 N.Y.2d 554, 558-559; People v. O'Brien, 212 A.D.2d 741, 742).
We have reviewed the defendant's remaining contentions and find them to be without merit. Sullivan, J.P., Santucci, Friedmann and Krausman, JJ., concur.