Opinion
November 13, 1990
Appeal from the County Court, Dutchess County (Hillery, J.).
Ordered that the order is modified, on the law, by deleting the provision thereof which granted that branch of the defendant's omnibus motion which was to dismiss indictment No. 86/88 on the ground of legally insufficient evidence, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, the indictment is reinstated, and the matter is remitted to the County Court, Dutchess County, for further proceedings consistent herewith.
Contrary to the People's contention, the defendant's motion to preclude his inculpatory statement was properly granted. While the defendant received a timely Huntley notice which provided that the prosecution would offer a statement taken from him on the date of his arrest, the People concede that a copy of another, unrelated confession taken from the defendant on the same date was appended thereto. Only after the 15-day period for giving notice (see, CPL 710.30) had expired, was the defendant served with a copy of the statement pertaining to the indictment in this case. Inasmuch as the wrong inculpatory statement was attached to the Huntley notice, and that notice did not otherwise convey the sum and substance of the statement which the prosecution intended to use in this case (see, People v. Miller, 154 A.D.2d 717; People v Brooks, 121 A.D.2d 392), the People failed to comply with the requirements of CPL 710.30. Moreover, while the correct statement was eventually served upon the defendant, the People failed to demonstrate the existence of "good cause" (CPL 710.30) for the untimely service, as their proffered explanation amounted to nothing more than office failure (see, People v. O'Doherty, 70 N.Y.2d 479; People v. Spruill, 47 N.Y.2d 869; People v. Briggs, 38 N.Y.2d 319; People v. Balkum, 149 A.D.2d 976; People v. Weinstein, 140 A.D.2d 731).
Insofar as the People contend that notice of the statement pursuant to CPL 710.30 was unnecessary because the defendant moved to suppress the statement at issue notwithstanding the lack of written notice (see, CPL 710.30; People v. White, 73 N.Y.2d 468, cert. denied ___ US ___, 110 S Ct 170; People v. Nardo, 153 A.D.2d 972), we note that the record fails to support this claim and instead demonstrates that the defendant sought preclusion of the statement under the statute (see, People v. Bernier, 73 N.Y.2d 1006; People v. Amparo, 73 N.Y.2d 728).
However, the People are correct in contending that the dismissal of the indictment was improper, inasmuch as the evidence before the Grand Jury was prima facie competent and the subsequent preclusion of the defendant's statement did not render the indictment invalid (see, People v. Oakley, 28 N.Y.2d 309; People v. Kersch, 135 A.D.2d 570; People v. Blase, 112 A.D.2d 943; People v. Vega, 80 A.D.2d 867; People v. Mauceri, 74 A.D.2d 833). Accordingly, the indictment is reinstated and the matter is remitted to the County Court for further proceedings (see, People v. McIntosh, 167 A.D.2d 429 [decided herewith]), including resolution of the remaining branches of the defendant's omnibus motion. Sullivan, J.P., Rosenblatt, Miller and Ritter, JJ., concur.