Defendant James Lanier is charged with assault in the first degree and related offenses. He has moved to suppress a gravity knife recovered from his person on July 2, 2004.^[FN1] A Mapp hearing was held before me on April 11, 2005. The People presented one witness, Police Officer Esteban Estrada. The defendant did not present any evidence. The People move for an order permitting them to reopen the hearing to present additional "new" evidence. For the reasons set forth below, the People's motion to reopen the hearing is denied and defendant's motion to suppress is granted.

At the hearing, Officer Estrada testified, in substance, that on July 2, 2004, he received a radio run of a past assault. He arrived at the scene and interviewed a woman in an apartment in the building. The woman told the officer that defendant, who was standing in the hallway, had assaulted her son a few days before, that she had filed a report, and that she wanted defendant arrested. Officer Estrada testified that he verified that a report was in fact filed, then had the woman in the apartment look into the hallway to make an identification. Officer Estrada then placed defendant under arrest, handcuffed him, and recovered a gravity knife from defendant's person.

The People's direct examination lasted less than five minutes and covers barely six pages of the hearing transcript. The testimony, as presented by the People, showed a search incident to a valid arrest. Case closed.

On cross-examination, however, it turns out that the simple scenario presented by the People on direct was not really accurate. In response to a seemingly innocuous question as to whether the defendant was with anyone when Officer Estrada first saw him in the hallway, the officer responded "just other officers." Further testimony on cross-examination revealed that when Officer Estrada arrived on the scene, defendant had already been detained by other officers who had arrived previously. He was the "arresting officer" in name only, since the defendant was being physically [*2]held by other officers when this officer arrived.^[FN2]

It did not occur to me that an assistant district attorney would knowingly present a factual scenario to the Court that was materially misleading, so I assumed that the officer's testimony had come as a surprise to the People. Although the People had previously indicated an intention to call only one witness, I pointedly asked if the People wanted to call an additional witness (one of the officers who had detained defendant initially):

THE COURT: [Do] you speak to these people before you put them on the stand, or you just throw them on when they come in?

ADA: Well, I spoke to him, your Honor.

THE COURT: You resting or are you going to call another witness?

ADA: I'm going to rest at this time, your Honor.

Both sides presented argument. I alerted the People to the problem of proof: it appeared that the defendant was under arrest or at least the subject of a seizure prior to the time the testifying officer arrived on the scene. There was no witness called to explain even by hearsay what the officers who held defendant knew at the time they stopped and physically restrained him.

The People initially argued that this was irrelevant because Officer Estrada was designated the "arresting officer." What mattered, according to the People, was what he knew. I pointed out that this was absurd, since who gets designated the "arresting officer" is a matter of police procedure. What matters, of course, is what the officers who actually apprehended defendant knew at the time of the apprehension, not what the "arresting" officer learned after-the-fact. I asked:

THE COURT: What evidence is there that the two officers who were on the scene holding him knew anything at all that would allow them to restrain this defendant?

ADA: There is no evidence to that, Judge.

THE COURT: Right.

ADA: There is no evidence that the original detaining of this defendant was permissible or not, but I believe the question before the Court is whether the arrest was permissible. . . . This officer testified specifically that he performed the I.D. procedure, that he's the one that put the cuffs on.

[T]ruly I can understand this Court's desire to walk through stages one through four of the DeBour analysis, but truly the question at hand was is the arrest proper.

This is the arresting officer. Did he have enough information when he made the arrest to justify this arrest?

Certainly, I can understand your [the Court's] desire to have the background or the prelude to this arrest clear at this point, and certainly I'm sensitive to that issue and I would never present a case to you again without that backdrop, but in terms of legal sufficiency and the burdens that are at issue at this proceeding, this arrest was justified.

I adjourned the matter for two weeks to afford both sides the opportunity to submit case law. A few days later, however, the assigned assistant called my chambers and informed my court attorney that he was going to make a motion to reopen the hearing in order to present "new" evidence. The new evidence, not surprisingly, was the testimony of the apprehending officers, whose names the People had just discovered as "new" evidence. The motion was submitted on the next adjourn date.

In essence, the assigned assistant affirmed that on the date of the hearing he had been unable to determine who the apprehending officers had been because the "arresting" officer had no recollection. He had not been able to speak to the arresting officer's partner, because he was overseas on military duty. The 911 tape had been ordered, but because an incorrect version was sent, the original was destroyed. The "sprint printout" (which contains in written form the substance of the radio transmissions including the assignment of the responding officers) had been re-ordered but had not been received when the hearing was conducted. Miraculously, however, immediately after the hearing was conducted, the People were able to obtain the correct sprint printout and locate the apprehending officers.

More troubling, however, is the revelation which was implicit in the People's papers but made explicit during the course of argument that the assigned assistant knew, at the time of the hearing, that the defendant was in the custody of other officers when the "arresting officer" arrived. This had not occurred to me.

To make matters worse, the assigned assistant, when confronted, did not seem to appreciate that this was a matter of serious concern:

THE COURT: What I'm saying is you put on your case in front of this Court in a manner that made it seem as if the defendant was alone in the hallway and omitted to bring to my attention that the defendant was being held by two other officers. That's what I said was misleading. You don't seem to understand that's wrong to do.

A.D.A.: Wrong in that it was deficient perhaps. Wrong as if it was intentionally misleading, that's incorrect.

THE COURT: Well, did you intend to bring out he was being held by two officers and just forgot; is that what you're telling me?

A.D.A: The status of whether he was detained or not when he was pointed out by the witness I did not view at that time as a crucial aspect.

THE COURT: But you could have, but you could have gotten that information when you realized you had the wrong information and just not done the hearing.

A.D.A.: I could have waited and burned more 30.30 time with an in defendant, and perhaps on this case on a going-forward basis, I will make sure that every I is dotted and T crossed as long as there's 30.30 time remaining on an in defendant before I say ready.

The People are entitled to only one full and fair opportunity to present evidence dispositive of the issues at a suppression hearing. People v. Havelka, 45 NY2d 636 (1978); People v. Crandall, 69 NY2d 459, 464 (1987); People v. Ynoa, 223 AD2d 975 (3d Dept 1996); People v. Lopez, 206 AD2d 894 (4th Dept 1994); People v. Weddington, 192 AD2d 750 (3d Dept 1993); People v. Travis, 162 Ad2d 807 (3d Dept 1990. This rule, as the Court of Appeal's noted in Havelka, "accords with a system that 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." People v. Havelka, 45 NY2d 636, 643.

Where an erroneous ruling by a trial court, however, prevents the People from introducing dispositive evidence (or causes the People to refrain from introducing such evidence) the People will be permitted to reopen the hearing to introduce further evidence upon remand. People v. Crandall, 69 NY2d 459, 464 (1987); People v. Weddington, 192 AD2d 750 (3d Dept 1993). This is simply part of the general rule giving the People one "full and fair" opportunity to present evidence.

Although most of the case law arises in the context of reversal following remand on appeal, the law is no different when application is made to the trial court. Thus, in People v. Broughton, 163 AD2d 404 (2d Dept 1990), the prosecutor failed to introduce evidence that the "arresting police officer's street encounter with the defendant was justified at its inception." Id. at 405. After both sides rested, the People moved to reopen the hearing to cure the defect. The trial court granted the People's application, and the hearing was reopened. The Second Department reversed:

The People concede that the reopening of the hearing was improper. They were given every opportunity to present the evidence in question at the original hearing. Their failure to present evidence of probable cause was not based upon an erroneous judicial ruling, and there is no basis to justify providing them with a second bite of [*5]the apple. . . .

In People v. Lopez, 206 AD2d 894, supra, the prosecution argued that an arrest was proper based on an outstanding warrant, but failed at the hearing to produce the warrant. The trial court denied the People's application to reopen the hearing and the Fourth Department affirmed:

The court properly exercised its discretion in denying the People's motion to reopen the suppression hearing. "There was no justification here to afford the People a second chance to succeed where once they had tried and failed" (People v Bryant, 37 NY2d 208, 211; accord, People v Havelka, 45 NY2d 636, 643).

In rare circumstances, equitable considerations will permit a court to exercise its discretion to reopen a hearing. Thus, where new evidence becomes available to the People that was not available initially, a trial court has discretion to reopen a hearing. See e.g. People v. Somerville, 283 AD2d 596 (2d Dept 2001), lv denied 96 NY2d 942, writ of habeas corpus granted on other grounds sub nom. Somerville v. Conway, 281 F. Supp.2d 515 (E.D.NY 2003), on remand 3 Misc 2d 593; People v. Ayala, 149 AD2d 519 (2d Dept 1989) (reopening permitted where People could not initially locate identifying witness to show independent source); cf. People v. Greco, 230 AD2d 23 (4th Dept 1997), appeal denied 90 NY2d 858 (reopening of Frye hearing permitted where new scientific evidence relating to reliability of DNA evidence arose after hearing completed).

In addition, where there is some question as to whether the defense was raising a particular issue in its motion, courts have permitted reopening to permit a full presentation of all the relevant issues. See e.g. People v. Dawson, 115 AD2d 611 (2d Dept 1985) (reopening permitted in Lypka-Havelka context where reliability of sending transmission not raised until People rested); People v. Hernandez, 124 AD2d 893 (3d Dept 1986) (reopening permitted where defendant "apparently for the first time" challenged execution of search warrant); People v. Tirado, 266 AD2d 130 (1st Dept 1999), lv denied 94 NY2d 867 (reopening permitted where parties confused about aspect of witness's testimony apparently necessary to determine issues).

Recently the First Department held that a trial court can exercise it's discretion to reopen a hearing to cure a small technical defect where there was no bad faith by the People. People v. Widgeon, 303 AD2d 330, (1st Dept 2003), lv denied 100 NY2d 589. In Widgeon, the People inadvertently omitted to put in a "clear photograph" of a lineup. The First Department held that the trial court was within its discretion in permitting the People to reopen the hearing since there was no bad faith by the People, or prejudice to the defendant and a very small chance that the evidence had been tailored to fit the court's requirements. This case apparently acknowledges in the hearing context that a hearing court has discretion to reopen a hearing to prevent what, in the trial context, the Court of Appeals has recently referred to as the "'gotcha' principle of law." People v. Whipple, 97 NY2d 1, 7 (2001).

In the instant case, neither the law or equitable considerations justify the reopening of the hearing to present additional evidence. The evidence is "newly discovered"only in that it is new to [*6]the People. It was always available had the People chose to find it. Nor can the People's failure to obtain the evidence be blamed on defendant's failure to raise the issue of his seizure initially. The hearing was specifically ordered to determine if the police had probable cause to arrest defendant and search him. Rather, the People's failure to meet their burden, by their own admission, arose out of a deplorable combination of ignorance of the law and a calculated decision to proceed without critical evidence so as not to "burn up further 30.30 time." The People were alerted at oral argument to the very failure they now seek to rectify and did not request an opportunity to cure it. Moreover, the People made the inexcusable decision to present on their direct case an entirely misleading version of the facts, and, to this day refuse to acknowledge that they did anything improper.

Thus, even if I had discretion to reopen the hearing, I would not exercise it in this case. The motion to reopen the hearing to present additional evidence is denied.

I find that on July 2, 2004, at approximately 10:00 A.M., Officer Estrada, who was assigned to the 46th Precinct, responded to a radio run, with his sergeant, of a "1010, dispute with a past assault." When he arrived at 190 West Burnside Avenue in the Bronx, he observed the defendant in the hallway outside the apartment of the witness who had apparently called 911. The defendant was being held by two other, unidentified officers who arrived before Officer Estrada. Officer Estrada did not know what information had been given to those officers or if they had already searched defendant.

Officer Estrada spoke with the female witness who identified the defendant as the individual she had seen punch her son in the face. She also told him that the defendant was dating her daughter, that they have a child together and that her daughter was pregnant. The assault had been reported to the police. After verifying that there was an open UF-61, Officer Estrada "arrested" the defendant, handcuffed him and searched his pockets. He recovered a gravity knife from defendant's pocket.

At the time Police Officer Estrada arrived on the scene, the defendant was already being held by other police officers. The People presented no evidence on what information was available to the apprehending officers that would have permitted the detention or arrest of defendant. On the evidence as presented, the recovery of the gravity knife was a direct result of a stop or arrest without reasonable suspicion or probable cause. People v. DeBour, 40 NY2d 210 (1976); People v. Roach, 265 AD2d 855 (4th Dept 1999), lv denied 94 NY2d 906; People v. Travis, 162 AD2d 807, 810 (3d Dept 1990). Accordingly, defendant's motion to suppress the knife is granted.

This opinion constitutes the decision and order of the Court.

Dated: July 21, 2005

Bronx, New York

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J.S.C. [*7]