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.

Line of Cases

In another line of cases, however, the court has also developed the corollary to Havelka: The People should be permitted a second opportunity to present evidence when, having been misled by an erroneous ruling at the hearing, they refrain from offering other available evidence to support an alternative theory that would have satisfied their burden. Under these circumstances “it would be unfair to punish the People for not presenting valid theories or sufficient evidence to justify a search or seizure when good cause exists for the omission.”5

This principle was articulated in People v. Crandall.6 In Crandall, the suppression court denied suppression based upon an erroneous ruling that a search warrant had been lawfully issued pursuant to an oral application. The People, relying upon the presumptive validity of the warrant, did not offer evidence under any alternative theory to support the search. On appeal, the Appellate Division remitted for a new suppression hearing after a finding that the warrant was invalid.

In affirming, the Court of Appeals held that the People should be given a second opportunity to establish the legitimacy of the search on grounds other than the invalid search warrant. The court noted that the People “had no previous incentive to advance alternative theories nor would it have made any legal or practical sense to advance theories supporting the legality of the search other than on the preferred warrant basis.”7

Similarly, in People v. Malinsky,8 the People attempted to justify a search as incident to a lawful arrest based in part on a tip by an informant. At the suppression hearing, the court erroneously ruled that the People did not have to provide the defendant with the informant’s identity. A second hearing was permitted to provide the prosecution an opportunity to submit additional evidence to establish probable cause for the arrest, independent of the information supplied by the informant. This evidence had not been originally introduced because the People had been relying upon an incorrect ruling, thus making it unnecessary to offer an alternative theory.

Consistent with Malinsky, the court permitted a reopened hearing in People v. Green,9 where the suppression court mistakenly held that a search was lawfully executed pursuant to a search warrant. As a result, the People did not present evidence justifying the search as incident to a valid arrest. When the court found the search to be beyond the scope of the warrant, it remitted the case to allow the People to introduce evidence relating to the search-incident-to-arrest theory.10

The People will also be entitled to a second hearing if they argue a substantive theory of suppression that is predicated on a statute later found to be invalid. Thus, in People v. Payton,11 the U.S. Supreme Court held invalid the New York statute permitting arrests in a suspect’s home without a warrant. The Court of Appeals remitted the case to permit the People to offer evidence that the arrest might have been justified by exigent circumstances. Similarly, in People v. Breazil,12 the prosecution was afforded a new suppression hearing when the U.S. Supreme Court, during the pendency of the defendant’s appeal, modified the law dealing with stops based upon anonymous information. The People were then given an opportunity to establish that the stop was lawful pursuant to an alternative theory.

Prosecutors Are on Notice

Crandall and its progeny are based upon the principle that the People should not be deprived of an opportunity to present fully any available evidence which had not been presented at the hearing because of an erroneous ruling. On the other hand, the rule in Havelka prohibits a second chance when the People have had a full and fair opportunity to present their best evidence.

In Kevin W., the People argued that they deserved a second chance pursuant to the principle established in Crandall. In their brief and in oral argument, they argued that by relying on the fellow officer rule, they were not required to call Officer B (the “sending officer”) to testify. Thus, the prosecution alleged that the JHO’s ruling erroneously held that the testimony of Officer B was necessary to sustain the People’s burden.

In addition, at oral argument, the prosecutor argued that even if the ruling were correct on the law, the court still had the discretion, in the pretrial setting, to reopen the hearing for additional evidence. This argument resonated with Judge Robert Smith who, in a lone dissent, opined that the application of the Havelka rule to the pretrial setting unnecessarily interfered with the discretion of suppression courts. He also found that the risk of tailored testimony, while present upon remittal from an appellate court, would be minimal at the trial level.

The Court of Appeals rejected both of the People’s arguments, holding that in calling only one officer to testify, the People had not satisfied their burden of establishing lawful police conduct. Second, once the prosecution made an unfettered decision in presenting evidence, the suppression court lacked discretion to reopen the hearing to permit additional evidence. The court also opined that in not calling Officer B, the People may have simply made a flawed strategic choice in what was, for the suppression court, a straightforward application of DeBour13 to a weapons possession charge.

Kevin W., more than any other recent decision by the court, makes clear that at suppression hearings the prosecution must carefully evaluate its evidence prior to the hearing. A prosecutor must decide which evidence should be presented and the risks he or she faces if certain evidence is not adduced. If a prosecutor miscalculates and chooses not to call a particular witness, it is now clear that a suppression court does not have the discretion to permit the prosecutor to offer additional evidence at a reopened hearing in order to cure a defect in proof.

Thus, prosecutors are now on notice that by omitting to call a witness, they proceed at their peril and may forfeit a second bite of the apple.

Barry Kamins is a Supreme Court justice, chief of policy and planning for the statewide court system and administrator for the Criminal Court of the City of New York.


1. People v. Havelka, 45 NY2d 636, 643 (1978).

2. 45 NY2d 636 (1978).

3. Id. at 643 ___ (quoting People v. Bryant, 37 NY2d 208, 211 (1975)).

4. ___ NY3d ___, 2013 NY Slip Op 07761 (2013).

5. Id. at *6.

6. 69 NY2d 459 (1987).

7. Id. at 462.

8. 15 NY2d 86 (1965).

9. 33 NY2d 496 (1974).

10. See also People v. Price, 204 AD2d 753 (3d Dept. 1994); People v. Weddington, 192 AD2d 750 (3d Dept. 1993); People v. Lee, 193 AD2d 529 (1st Dept. 1993).

11. 51 NY2d 169 (1980).

12. 31 AD3d 461 (2d Dept. 2006).

13. 40 NY2d 210 (1976).