Court of Appeals Maintains a Level Playing Field

, New York Law Journal

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Barry Kamins
Barry Kamins

In a decision that maintains the playing field, the New York Court of Appeals has ruled, in the context of a pretrial motion to reopen a suppression hearing, that the People may not present additional evidence to deny suppression when they had a full and fair opportunity to present their case. In reaching this decision, the court followed its earlier cases holding that appellate courts may not remit for a reopened hearing when this would have given prosecutors a "second bite of the apple."

Firmly Established Principle

Thirty-five years ago, the court expressed the view that our system of justice "offers a single opportunity for the presentation and resolution of factual questions. If such a practice were not followed, the defendant, having prevailed at the hearing, would be haunted by the specter of renewed proceedings. Success at a suppression hearing would be nearly meaningless, for a second and perhaps a third hearing, could later be ordered."1

This principle was firmly established in People v. Havelka,2 in which the defendant had moved unsuccessfully, prior to trial, to suppress a handgun and blackjack found on his person. The Appellate Division, Second Department, found the evidence offered at the suppression hearing insufficient to justify the challenged police action, held the appeal in abeyance, and remitted the case for a hearing to give the People an opportunity to offer further evidence.

At the new hearing, the prosecutor called an additional witness to establish that the search had been justified. After the rehearing, the lower court found the evidence sufficient to deny suppression, and the Appellate Division affirmed. The Court of Appeals reversed the conviction and dismissed the indictment, holding that the People cannot get "two bites" of the same apple. The court stressed that, having had a full opportunity to be heard at the first hearing, the People could not get "a second chance to succeed where once they tried and failed."3 The court also noted that the practice of ordering a new hearing could lead to abuse through the tailoring of testimony to fit the requirements established by an appellate court's opinion.

Thus, Havelka prevented appellate courts, under certain circumstances, from remitting cases for reopened hearings, post conviction and pending appeal. In People v. Kevin W.,4 the Court of Appeals has now applied that rule to suppression courts that seek to reopen hearings prior to trial. In Kevin W., Officers A and B were on anti-crime patrol when they observed the defendant and his older brother on a subway platform. The two brothers, as well as the officers, boarded a train; Officer A sat on the same bench as the two young men and Officer B sat on the opposite bench. The brothers got off the train three stops later at the Halsey Street station, the site of a gunpoint robbery committed two days earlier. Based on descriptions of the perpetrators of that crime, Officers A and B intended to ask questions of the defendant and his brother.

After leaving the train the officers identified themselves and told the brothers that they wanted to ask some questions. Officer A approached the defendant who refused to show identification, insisted he had done nothing wrong, told the officer not to touch him and tried to walk away. Officer A asked the defendant to lean against the wall and produce identification. At some point, the defendant appeared to reach for his waistband. Officer A grabbed the defendant's arm and attempted to push him against a wall and apply handcuffs. The defendant resisted and broke free, leaving his book bag on the platform.

In the meantime, Officer B had forced the defendant's brother against a wall and he was told to remain there while the officer turned to assist Officer A. However, the brother ran, tossing an object (an inoperable pistol) onto the platform. Officers A and B were unsuccessful in their pursuit of the two brothers. Another officer recovered the defendant's bag which contained a loaded handgun and, by utilizing notations on a legal pad and a photograph of the defendant found in the bag, the police were able to identify the defendant. He was arrested at his home the following day.

Following his indictment, the defendant moved to suppress the weapon. A suppression hearing was conducted before a judicial hearing officer (JHO) and the prosecutor chose to call Officer A to testify but not Officer B. Officer A testified that he and Officer B were canvassing the area when Officer B told him that the two young men were "acting a little suspicious."

The JHO characterized Officer A's testimony as "sketchy" and "undeveloped" and the JHO was therefore unable to determine whether Officer B had a reasonable belief that the two men were armed. As a result, the JHO concluded that the gun was seized as a result of an illegal stop. The court adopted the JHO's findings and granted suppression. Based upon the People's motion for reargument, the court sent the matter back to the JHO to give the prosecution an opportunity to call Officer B. Based on Officer B's testimony, the JHO then found that Officer A had reasonable suspicion to stop the defendant and recommended a denial of the suppression motion.

The court adopted the JHO's finding and denied suppression. On appeal, the Appellate Division reversed, granted suppression and dismissed the indictment.

In affirming, the Court of Appeals balanced the two competing interests underlying the rule in Havelka: the strong public policy in protecting legitimate police conduct as well as the finality of proceedings, requiring parties to be prepared with their best evidence. In rejecting the prosecution's arguments, the court was persuaded that there was no justification for providing a second chance to the People where nothing had interfered with their first opportunity to sustain their burden of justifying the police conduct.

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