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upholding determination that parole officer's identification was merely confirmatory
Summary of this case from People v. PatoirOpinion
2 KA 14–00722
02-02-2018
The PEOPLE of the State of New York, Respondent, v. Joseph J. GAMBALE, Defendant–Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
Memorandum:We previously held this case, reserved decision, and remitted the matter to County Court to rule on the issue whether, as the People contended in opposition to defendant's suppression motion, a parole officer's identification of defendant as the person committing a robbery depicted in a surveillance video was confirmatory ( People v. Gambale, 150 A.D.3d 1667, 54 N.Y.S.3d 800 [4th Dept. 2017] ). We previously concluded that the court erred in ruling that the procedure employed by the police investigator was not unduly suggestive, and we thus remitted the matter to the court to address the alternative ground for denial of the motion raised by the People ( id. ). We were precluded from reviewing that alternative ground because the court "failed to rule on [that] ‘separate and analytically distinct’ issue" ( id. at 1670, 54 N.Y.S.3d 800 ).
Contrary to defendant's contention, the court properly determined upon remittal that the People met their burden of establishing that the parole officer's identification of defendant on the surveillance video was merely confirmatory. Here, the testimony of the investigator established that the parole officer and defendant were known to one another inasmuch as the parole officer had previously supervised defendant for several years (see People v. Lewis, 292 A.D.2d 814, 814, 740 N.Y.S.2d 165 [4th Dept. 2002], lv denied 98 N.Y.2d 677, 746 N.Y.S.2d 467, 774 N.E.2d 232 [2002] ; see also People v. Hines, 132 A.D.3d 1385, 1387, 17 N.Y.S.3d 551 [4th Dept. 2015], lv denied 26 N.Y.3d 1109, 47 N.E.3d 98 [2016] ; see generally People v. Rodriguez, 79 N.Y.2d 445, 452, 583 N.Y.S.2d 814, 593 N.E.2d 268 [1992] ). The evidence adduced at the suppression hearing "was sufficient to establish that defendant and [the parole officer] were ‘long-time acquaintances' ..., whose prior relationship was not ‘fleeting and distant’ ... or the result of a brief encounter" ( People v. Graham, 283 A.D.2d 885, 887–888, 725 N.Y.S.2d 145 [3d Dept. 2001], lv denied 96 N.Y.2d 940, 733 N.Y.S.2d 379, 759 N.E.2d 378 [2001] ; see People v. Collins, 60 N.Y.2d 214, 219, 469 N.Y.S.2d 65, 456 N.E.2d 1188 [1983] ; People v. Perez, 12 A.D.3d 1028, 1030, 785 N.Y.S.2d 218 [4th Dept. 2004], lv denied 4 N.Y.3d 801, 795 N.Y.S.2d 177, 828 N.E.2d 93 [2005] ). Thus, although the procedure employed by the investigator was unduly suggestive, the hearing evidence established that, "as a matter of law, the [parole officer was] so familiar with ... defendant that there [was] ‘little or no risk’ that [such] police suggestion could lead to a misidentification" upon the parole officer's observation of the individual depicted on the surveillance video ( Rodriguez, 79 N.Y.2d at 450, 583 N.Y.S.2d 814, 593 N.E.2d 268 ). We therefore conclude that the court properly refused to suppress the parole officer's identification of defendant.
Contrary to defendant's further contention, we conclude that the court properly exercised its discretion at trial in permitting the parole officer to identify defendant as the perpetrator of the armed robbery depicted in the surveillance video inasmuch as there was some basis for concluding that the parole officer was more likely to identify defendant correctly than was the jury (see People v. Brown, 145 A.D.3d 1549, 1549, 46 N.Y.S.3d 317 [4th Dept. 2016], lv denied 29 N.Y.3d 947, 76 N.E.3d 1081 [2017] ; People v. Montanez, 135 A.D.3d 528, 528 [1st Dept. 2016], lv denied 27 N.Y.3d 1072, 60 N.E.3d 1208 [2016] ). The parole officer's testimony thus " ‘served to aid the jury in making an independent assessment regarding whether the man in the [video] was indeed the defendant’ " ( Montanez, 135 A.D.3d at 528, 25 N.Y.S.3d 18 ; see Brown, 145 A.D.3d at 1549, 46 N.Y.S.3d 317 ). We note that the court properly instructed the jurors that the parole officer's opinion was merely to aid their decision based upon all the facts and circumstances of the case and that they were entitled to accept or reject it (see People v. Sanchez, 21 N.Y.3d 216, 225, 969 N.Y.S.2d 840, 991 N.E.2d 698 [2013] ; People v. Russell, 165 A.D.2d 327, 336, 567 N.Y.S.2d 548 [2d Dept. 1991], affd 79 N.Y.2d 1024, 584 N.Y.S.2d 428, 594 N.E.2d 922 [1992] ; Brown, 145 A.D.3d at 1549, 46 N.Y.S.3d 317 ).
Finally, we reject defendant's contention that the court abused its discretion in its Sandoval ruling. "While the [September 1986] conviction was [nearly] 30 years old, the court considered the fact that defendant had spent [approximately 17] of those years in prison, and thus it was not error to permit its limited use" ( People v. Williams, 186 A.D.2d 469, 469, 589 N.Y.S.2d 155 [1st Dept. 1992], lv denied 81 N.Y.2d 849, 595 N.Y.S.2d 749, 611 N.E.2d 788 [1993] ; see People v. Smalls, 16 A.D.3d 1154, 1155, 792 N.Y.S.2d 748 [4th Dept. 2005], lv denied 5 N.Y.3d 769, 801 N.Y.S.2d 264, 834 N.E.2d 1274 [2005] ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.