People v Kevin W.


AD2 order dated January 10, 2012, reversing YO adjudication and dismissing the indictment. Decision below: 91 A.D.3d 676, 935 N.Y.S.2d 660. Read, J., granted leave to People September 12, 2012.

ISSUES PRESENTED: (1) Whether, pursuant to People v. Crandall, 69 N.Y.2d 459 (1987), the hearing court was allowed to reopen the suppression hearing for the People to adduce additional evidence, where the hearing court is reviewing the report and recommendation of a JHO. (2) Whether the police lack of reasonable suspicion to stop the defendant, requiring the dismissal of the weapon count, also required the dismissal of the resisting arrest count. (Assigned counsel: Josh Levine and Lynn W.L. Fahey, Appellate Advocates, 2 Rector Street, 10th Floor, NYC 10006.)

Issue before the Court: Whether, under People v. Havelka, 45 NY2d 636 [1978], the suppression court erred in reopening the suppression hearing after it had held a hearing and issued an order suppressing th evidence.


Held: Because the People had a full and fair opportunity to litigate the suppression claim in the first instance, the suppression court should not have reopened the hearing.


CAL Observes: Havelka has been held applicable when a motion to suppress evidence has been denied, the defendant has been convicted but appeals, and an appellate court later determines that the hearing evidence failed to justify the challenged police action; under those circumstances, if the People had a full and fair opportunity to make their case, the appellate court should not order a reopened suppression hearing to give the People a second bite at the apple.  By this case, the Court extends the Havelka principle to the pretrial context, i.e., upon the People’s reargument motion the suppression court cannot do what an appellate court could not.  Despite Judge Smith’s solo dissent, this makes sense.