Lower Court Reopens Suppression Hearing, Allows Additional Testimony
People v Cook
NY Slip Op 09059
24 NY3d 412
May 13, 2020
Did the Lower Court Err in Reopening Suppression Hearing?
Issue:
Whether the lower court abused its discretion when, after argument but before a decision, the court allowed the People to reopen a suppression hearing and present additional testimony to establish reasonable suspicion for defendant Cook’s detention.
Holding:
Lower Court Did Not Abuse Discretion
The Court of Appeals held that the lower court did not abuse its discretion to reopen the suppression hearing, as the “one full opportunity” rule does not apply to hearings before a decision has been made.
Facts:
A taxi driver in the Bronx picked up a passenger who, once inside the vehicle, pulled out a knife and demanded money. The passenger cut the taxi driver’s neck, a struggle ensued, and the victim crashed his taxi. Police arrived on scene almost immediately. The assailant fled, and a few minutes later, two officers observed defendant, who matched the description provided by the victim, on a subway platform two blocks from the crash. Police detained defendant, and a sergeant brought the victim from the crash site to the arrest scene, where the victim identified defendant as his assailant. Defendant was arrested and charged with attempted robbery and assault.
Defendant Cook moved to suppress the identification made by the victim, arguing that the identification procedures had been unduly suggestive and that his initial detention at the subway station had been without reasonable suspicion. A suppression hearing was held, where the People called the police sergeant who testified as to the victim’s account of the incident and his observations of defendant after he arrived from the crash scene—that defendant was out of breath and sweating.
Defense counsel asserted that the People had not demonstrated reasonable suspicion to support detaining Cook, that the sergeant’s testimony that he had witnessed defendant out of breath after he was detained did not support a finding of reasonable suspicion to detain him in the first place. The People offered other witnesses to testify, but the court stated that this was impermissible because the People had rested.
After reviewing Appellate Division precedent provided by the People, the court determined that it did in fact have discretion to reopen the suppression hearing. The People formally requested to reopen the hearing, which the court granted, assuring defense counsel she would be afforded time to cross-examine the witness on whether the additional testimony was tailored to the issues raised at the previous argument. Upon reopening, an officer who first observed defendant on the subway platform testified that approximately five people were on the platform at the time he observed defendant, that he was the only one matching the victim’s description, and that he appeared to be hiding. The Supreme Court then denied defendant’s motion to suppress. A jury found defendant guilty of attempted first-degree robbery with a dangerous instrument and second-degree assault. The Appellate Division affirmed the judgement, holding that the Supreme Court “providently exercised its discretion in reopening a suppression hearing…in order to permit the People to call an officer with additional information tending to establish reasonable suspicion for defendant’s detention” (People v Cook, 161 AD3d 708, 708 [1st Dept 2018]).
Analysis:
Havelka Restrictions on Reopening a Suppression Hearing
The Court of Appeals has placed strict limits on a court’s discretion to reopen a suppression hearing in certain circumstances. In People v Havelka (45 NY2d 636 [1978]), the Court considered whether an appellate court could hold in abeyance and remit a case for a second hearing if “the evidence offered at the
[initial]
hearing [was] insufficient to justify the challenged police action” (45 NY2d at 639). The Court of Appeals disagreed with the Appellate Division, holding that “there is no justification…to afford the People a second chance to succeed where once they had tried and failed.” The Court concluded in Havelka that where the People do not claim they have not had a full opportunity to present evidence, there is no justification to remit for a second suppression hearing. (id. at 643).
In People v Kevin W. (22 NY3d 287 [2013]), the Court of Appeals extended Havelka’s “one full opportunity” rule where, almost two months after suppression was granted, the People in Kevin W. moved to reargue, and four months after that, the court reopened the suppression proceedings to allow the People to call another witness. Based on the additional testimony, the court reversed and denied the suppression motion. The Court of Appeals affirmed the Appellate Division’s order reversing the denial of the motion and dismissing the indictment, concluding that the judge was precluded “from reopening a suppression hearing to give the People an opportunity to shore up their evidentiary or legal position absent a showing that they were deprived of a full and fair opportunity to be heard” (22 NY3d at 289).
In Kevin W., the Court of Appeals noted that, “the truth-seeking function of a suppression hearing is critical, and there is a strong public policy interest in holding culpable individuals responsible and protecting legitimate police conduct. Finality is important, too, and parties are expected to be prepared for relevant proceedings with their best evidence. Our rule in Havelka balances these sometimes competing considerations, which are as evidence in the pretrial context as they are on the appeal of a suppression court’s decision” (id. at 296). Finality is a basic concern for both cases, and the People should not get “a second chance to succeed where they once tried and failed.”
Restrictions Do Not Apply Before a Decision Has Been Made
But the Court of Appeals held that these cases are not invoked here, as the lower court had not yet decided on the suppression motion when the People offered additional testimony. The Court declined to apply the “one full opportunity” rule to decisions to reopen suppression hearings prior to any ruling on the merits.
The Court explained that the risk of a tailored testimony at the reopened proceedings are lower when the People do not have a formal decision from either an appellate court or the hearing court, and also noted that hearing courts are “more than up to the task” of detecting manufactured testimony (People v Brujan, 104 AD3d 481 [1st Dept 2013]), and that cross-examination is an effective tool for such a scenario. The Court reiterated that is not guilt or innocence at stake in a suppression hearing, but whether the police had lawful cause to take the challenged action. (see People v Merola, 30 AD2d 963, 964 [2d Dept 1968]). Given that defense counsel had the opportunity to cross examine the witness for tailored testimony, and that the suppression hearing was reopened before any ruling was made, the lower court did not abuse its discretion. The order of the Appellate Division was affirmed.