INTRODUCTION

The arraignment unit of any city court in New York State is undeniably frenetic and fast paced. On any given morning in the Rochester City Court, between fifty to seventy-five defendants are arraigned on misdemeanor and violation charges before a single judge. While most defendants are either accompanied at arraignment by [*2]retained or assigned counsel, many remain unrepresented until a later court appearance. These two cases illustrate the special care a prosecutor must exercise at arraignment to ensure that his or her interactions with an unrepresented criminal defendant are scrupulously observed and adequately documented, regardless of how busy the docket may be.

Specifically, defendants in both cases move to preclude the introduction of statements they made to the police for lack of service of those statements within fifteen days of arraignment, as mandated by NY Criminal Procedure Law §710.30. In each case, the prosecutor asserts that he handed the 710.30 Notice to the unrepresented defendant at arraignment. In contrast, defendant in each case insists that no such service was ever made.

To decide defendants' motions, the Court conducted an evidentiary hearing in each action. This Decision and Order sets forth the Court's findings of facts and conclusions of law with respect to each defendant's motion.

FACTS

People v. Diane Arenas: Procedural Background

On April 8, 2007, defendant Diane Arenas was charged with the misdemeanor of Driving While Intoxicated under the common law, and the infractions of refusal to take a chemical test and failure to stay in lane. She appeared pro se for her arraignment on May 1, 2007. The Court directed defendant Arenas to appear with her attorney on May 3, 2007. When she did not do so, the Court issued a bench warrant for her arrest. Several days later, at her attorney's request, the Court vacated the bench warrant and scheduled defendant Arenas to appear with her attorney on May 16, 2007. Defendant Arenas and her attorney appeared on that date. The Court then scheduled argument of motions and hearings for July 25, 2007.

On July 10, 2007, defense counsel filed an omnibus motion seeking, inter alia, preclusion of defendant's statements to the police because no notice had been served on the defense within fifteen days as required by NY Criminal Procedure Law §710.30 [710.30 Notice]. Defendant's motion also sought a probable cause hearing and suppression of the evidence. On July 19, 2007, the People filed a generic form response, asserting that, "If statements were made to . . . any public servant, an appropriate notice was serve on the defendant of [sic] his/her attorney within fifteen days of arraignment."

The parties appeared for argument of motions and hearings on July 25, 2007. Defense counsel renewed his motion to preclude the use of any statements at trial. In response, the assistant district attorney, who had not appeared at defendant's arraignment, asserted that defendant must have been served a 710.30 Notice because there was a copy of the Notice in his file. Pending further proceedings, the Court reserved on defendant's Motion to Preclude Statements, but heard testimony regarding both defendant's arrest and her statements to the police.

At the conclusion of the hearing, the Court found that probable cause existed for defendant Arenas' arrest. The Court also scheduled an evidentiary hearing to determine whether the defense was, in fact, served with a 710.30 Notice within fifteen days of arraignment. The evidentiary hearing was held on August 21, 2007.

[*3]People v. Kevin Stokelin: Procedural Background

On April 29, 2007, defendant Kevin Stokelin was charged with the misdemeanors of Driving While Intoxicated under the common law and Driving While Intoxicated Per Se. He appeared pro se for his arraignment on May 8, 2007. Because he told the Court he could not afford an attorney, the Court advised him to go to the Public Defender's Office to determine whether he qualified for an assigned lawyer, and to return to Court for an attorney appearance.

Defendant Stokelin next appeared in Court on May 10, 2007. At that time, an assistant public defender was appointed to represent him. The Court scheduled a Pretrial Conference for May 15, 2007. Because no disposition occurred on that date, the Court scheduled argument of motions and pretrial hearings for July 30, 2007.

On July 13, 2007, defense counsel filed an omnibus motion seeking, inter alia, preclusion of defendant's statements to the police because no 710.30 Notice had been served on the defense within fifteen days. Defendant's motion also sought a probable cause hearing and suppression of the evidence. The People filed no written response to defense counsel's motion.

The parties appeared for argument of motions and hearings on July 30, 2007. Defense counsel renewed her motion to preclude the use of any statements at trial. In response, the prosecutor, who had not appeared at defendant's arraignment, asserted that defendant must have been served a 710.30 Notice because there was a copy of the Notice in his file. Pending further proceedings, the Court reserved on defendant's Motion to Preclude Statements, but heard testimony regarding both defendant's arrest and his statements to the police.

At the conclusion of the hearing, the Court found that probable cause existed for defendant's arrest. The Court also scheduled an evidentiary hearing to determine whether the defense was, in fact, served with a 710.30 Notice within fifteen days of arraignment. The evidentiary hearing was held on August 21, 2007.

Facts Regarding the People's Alleged Service of the 710.30 Notice on Defendant Arenas

The 710.30 Notice used by the People in Rochester City Court is a single page white document to which two carbonless copies, one pink and one yellow, are attached. Defendant Arenas testified that when she appeared for arraignment on May 1, 2007, she was not represented by an attorney. She also testified that she was never given a 710.30 Notice.

Assistant District Attorney Francis Ciardi, who was present in Court at defendant Arenas' May 1, 2007 arraignment, testified for the People. He testified that when he represents the People in Rochester City Court's arraignment part, he normally follows a regular practice with respect to the service of 710.30 Notices on unrepresented defendants charged with Driving While Intoxicated.

Mr. Ciardi's regular practice is as follows. First, he checks the relevant boxes on the white cover copy of the 710.30 Notice form indicating to whom he served the Notice ("defendant" or "defendant's attorney") and the service method ("handed to" or "mailed to the"); he fills in the location and date of service; he writes in the date of filing; and he [*4]signs the document. He then separates each of the three copies of the 710.30 Notice form from the others and staples one set of the police officer's supporting deposition and other relevant documents to each of the three 710.30 Notice copies. Next, he hands the pink copy of the 710.30 Notice to the defendant and states, for the Record, that he has done so. Finally, he provides the yellow copy of the 710.30 Notice to the Court Clerk for filing in the Court's file.

Both the Court's file and the prosecutor's file in defendant Arenas' case contain copies of a 710.30 Notice that was allegedly served on defendant in Court on May 1, 2007. However, both the Court's copy and the prosecutor's copy contain patently incorrect information. Although both copies indicate that the 710.30 Notice was "handed to" "defendant's attorney" in Court on "May 1, 2007," no attorney appeared in Court with defendant Arenas on that date.

In addition to providing incorrect information, the Assistant District Attorney departed from his normal practice in at least two respects in defendant Arenas' case. First, although Mr. Ciardi normally retains the white copy of the 710.30 Notice for the People's file and serves the pink copy on the defense, the People's file contains a pink copy, not a white copy, of the Notice. Second, Mr. Ciardi failed to state on the Record on May 1, 2007 that he handed the 710.30 Notice to defendant (or to anyone else) in Court.

Nevertheless, Mr. Ciardi specifically remembered defendant Arenas and her May 1, 2007 arraignment, and recalled the particular circumstances of his service of the 710.30 Notice on her. According to Mr. Ciardi, defendant Arenas appeared to be extremely nervous during her appearance. Following her arraignment, defendant Arenas turned to leave through the gate separating the front of the courtroom from the audience benches. As she walked towards the gate, Mr. Ciardi asked a nearby deputy to stop her so he could hand her the 710.30 Notice. The deputy did so, and Mr. Ciardi handed the 710.30 Notice to defendant Arenas immediately before she left through the gate.

Facts Regarding the People's Alleged Service of the 710.30 Notice on Defendant Stokelin

Defendant Stokelin testified that when he appeared for his arraignment on May 8, 2007, he was not represented by an attorney. He also testified that he was never given a 710.30 Notice. The only document he received on May 8th was a pink slip of paper indicating his next court date.

Assistant District Attorney Francis Ciardi, who was present in Court at defendant Stokelin's May 8, 2007 arraignment, testified for the People. Mr. Ciardi could not recall defendant Stokelin's arraignment. However, as at defendant Arenas' hearing, Mr. Ciardi testified about his regular practice with respect to the service of 710.30 Notices on unrepresented defendants charged with Driving While Intoxicated. The routine procedures that Mr. Ciardi follows are those about which he testified in defendant Arenas' hearing.

Both the Court's file and the prosecutor's file in defendant Stokelin's case contain copies of a 710.30 Notice that was allegedly served on defendant in Court on May 8, 2007. However, both the Court's copy and the prosecutor's copy contain patently [*5]incorrect information. Although both copies indicate that the 710.30 Notice was "handed to" "defendant's attorney" in Court on "May 8, 2007," no attorney appeared in Court with defendant Stokelin on that date.

In addition to providing incorrect information, the Assistant District Attorney departed from his normal practice in at least two respects in defendant Stokelin's case. First, although Mr. Ciardi normally retains the white copy of the 710.30 Notice for the People's file and serves the pink copy on the defense, the People's file contains a pink copy, not a white copy, of a the Notice. Second, Mr. Ciardi failed to state on the Record on May 8, 2007 that he handed the 710.30 Notice to defendant (or to anyone else) in Court.

DISCUSSION OF LAW

It is black letter law that a defendant is entitled to preclusion of statements he or she made to the police if the People did not serve a 710.30 Notice on him or her, or on defense counsel, within fifteen days of arraignment, even if no prejudice to defendant resulted from the failure to serve the Notice in a timely manner. See NY Criminal Procedure Law §710.30; People v. Lopez, 84 NY2d 425, 503-04 (1995); People v. O'Doherty, 70 NY2d 479, 486-87 (1987); People v. Scott, 222 AD2d 1004 (4th Dep't 1995), appeal denied, 87 NY2d 1025 (1996). In the cases at bar, however, the parties disagree as to whether the People served the Notices on defendants at all. Thus, in each case, the Court must resolve the dispute.

How the factual disputes in these cases are resolved depends, in large measure, on the applicable burden of proof and the standard of proof. Neither New York's criminal law statutes nor criminal case law provide any direction with respect to these matters. Under these circumstances, it is reasonable and appropriate to look to New York's civil procedure laws and case law for guidance. See People v. Perez, 189 Misc 2d 516, 519 (Crim.Ct. Nassau Co. 2001); People v. Godoy, 180 Misc 2d 771, 773 (Crim.Ct. N.Y.C. 1999); People v. Fulton, 162 Misc 2d 360, 363 (Crim.Ct. Monroe Co. 1994).

In the area of service of notices to defendants, there is a close civil law analog that provides clear guidelines for situations where the service of documents is disputed. In civil cases, the plaintiff is required to serve process upon the defendant. A process server's affidavit swearing that process was served creates a presumption of proper service. However, when the defendant submits that he or she did not receive process, the burden is placed upon the plaintiff to prove, by a preponderance of the evidence, that process was, in fact, served. See Munoz v. Reyes, 40 AD3d 1059 (2d Dep't 2007); Bankers Trust Co. of California, N.A. v. Tsoukas, 303 AD2d 343 (2d Dep't 2003).

The preponderance of the evidence standard does not require the People to prove with either absolute certainty or a substantial probability that the 710.30 Notice was served. Rather, the People are required to prove only that "the existence of the fact [of service of the 710.30 Notice] is more probable than its non-existence." People v. Jones, 10 Misc 3d 413, 415 (Crim.Ct. Dutchess Co. 2005). See Dempsey v. Methodist Hospital, 159 AD2d 541, 541-42 (2d Dep't 1990); People v. Joseph, 5 Misc 3d 517, 527 (Sup.Ct. Kings Co. 2004).

Defendants in both cases contend that they did not receive 710.30 notices, triggering, under the civil law standards, the People's obligation to prove by a [*6]preponderance of the evidence that the 710.30 Notices were served. However, although the burden and standard of proof to be applied in each case is the same, the evidence offered by the parties in each case is significantly different.

In defendant Arenas' case, the Assistant District Attorney testified credibly that he specifically remembered both defendant Arenas and her May 1, 2007 arraignment. More significantly, he was "99% certain" that defendant Arenas started to leave the front of the courtroom before he served her with the 710.30 Notice, and that he asked a deputy to stop her before she left so he could hand her the Notice.

In contrast, defendant Arenas' memory was somewhat less clear, and her testimony was somewhat less credible, than those of the Assistant District Attorney. Although defendant Arenas testified that she thought she was arraigned in the afternoon, the Record reflects that she was arraigned in the morning. Additionally, defendant Arenas gave inconsistent testimony regarding whether she had received any papers at her arraignment. She initially testified that she received no documents, but later, upon prompting, acknowledged that she had received a pink slip with her next court date.

Accordingly, based upon all the evidence, the Court finds that the People have met their burden of proving that it was more probable than not that the Assistant District Attorney handed the 710.30 Notice to defendant Arenas at her May 1, 2007 arraignment. The same, however, cannot be said about defendant Stokelin's situation.

In defendant Stokelin's case, the Assistant District Attorney candidly conceded that he had no recollection whatsoever of defendant Stokelin or his arraignment. Defendant Stokelin, on the other hand, credibly recalled precise details about his May 8, 2007 arraignment, including the pink slip with his next court appearance date that he was given. Accordingly, while it is possible that defendant was served with a 710.30 Notice at his arraignment, the Court finds that the People have failed to satisfy their burden of proving that it is more probable than not that they did so.

It is worth noting that the People could have avoided the risk of preclusion in these cases in several ways. First, the Assistant District Attorney could have been more diligent about completing the 710.30 Notices properly and stating on the Record that he was serving the 710.30 Notices on defendants as he did so.

Second, had the People more carefully examined defense counsels' omnibus motions when they were served, they would known that defendants were seeking preclusion of the statements, rather than suppression, for failure to receive the 710.30 Notices. Given the People's good faith belief, based on the pink 710.30 Notice copies in their files, that they had indeed served the defendants with 710.30 Notices, they might have moved promptly for permission to serve defendants beyond the requisite fifteen days "[f]or good cause shown." NY Criminal Procedure Law §710.30(2). Under all the circumstances, it is possible that the People's explanation of what occurred would have qualified as "good cause" for late service. The People's failure to move for late service, however, necessarily precluded the Court from considering the possibility.

CONCLUSION

For the foregoing reasons, defendant Arenas' Motion to preclude the statements she made to the police is denied. Based on the evidence adduced at the July 25, 2007 hearing, the Court finds that defendant Arenas' statements to the police were made [*7]knowingly, willingly, and voluntarily. Defendant Arenas' Motion to suppress such statements is therefore denied.

For the foregoing reasons, defendant Stokelin's Motion to preclude the statements he made to the police is granted.

SO ORDERED.

September 7, 2007_______________________________

Hon. Ellen M. Yacknin