The People, Respondent,v.Dean Pacquette, Appellant.BriefN.Y.June 4, 2015APL-2014-00135 To be argued by CARL S. KAPLAN (15 Minutes) Court of Appeals State of New York THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - DEAN PACQUETTE, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT ROBERT S. DEAN Attorney for Defendant-Appellant CENTER FOR APPELLATE LITIGATION 120 Wall Street New York, NY 10005 Tel: (212) 577-2523 Fax: (212) 577-2535 CARL S. KAPLAN Of Counsel September 5, 2014 i TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . iii PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . 1 QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . 2 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . 3 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . 5 The People’s C.P.L. §710.30 Notice For One Officer . . . . 5 The Pre-Trial Dunaway/Wharton Hearing . . . . . . . . . . 6 The Trial . . . . . . . . . . . . . . . . . . . . . . . . 7 The People’s Case . . . . . . . . . . . . . . . . . . 7 Arrest; Showup Identifications . . . . . . . . 13 The Defense Case . . . . . . . . . . . . . . . . . 15 Motion to Preclude Detective Vanacore’s Identification Testimony . . . . . . . . . . . . . 16 The ad hoc Wharton Hearing . . . . . . . . . . . . 18 The Court’s Decision . . . . . . . . . . . . . 21 Verdict & Sentence . . . . . . . . . . . . . . . . 22 The First Department’s Decision . . . . . . . . . . . . 22 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . 23 POINT THE PROSECUTION’S FAILURE IN THIS BUY-AND-BUST CASE TO PROVIDE C.P.L. §710.30 NOTICE OF THE PRE- TRIAL POLICE-ARRANGED IDENTIFICATION OF APPELLANT BY A “FOOT APPREHENSION OFFICER,” I.E., A FIELD TEAM OFFICER OTHER THAN THE UNDERCOVER PURCHASING OFFICER, REQUIRES THE PRECLUSION OF HIS IDENTIFICATION TESTIMONY BECAUSE THE WHARTON CONFIRMATORY IDENTIFICATION EXCEPTION TO THE NOTICE REQUIREMENT DOES NOT APPLY WHERE, AS HERE, THE OFFICER INITIALLY VIEWED THE PERPETRATOR ii FLEETINGLY AND AT A DISTANCE ACROSS THE STREET, AT NIGHT, AND LOST SIGHT OF HIM FOR 10 TO 15 MINUTES BEFORE THE SUBSEQUENT SHOWUP IDENTIFICATION. U.S. CONST., AMEND. XIV; N.Y. CONST., ART. I., §6. . . . 23 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . 37 STATEMENT PURSUANT TO RULE 5531 . . . . . . . . . . . . . . . 1-A PRINTING SPECIFICATIONS STATEMENT . . . . . . . . . . . . . . 2-A iii TABLE OF AUTHORITIES Federal Cases Gilbert v. California, 388 U.S. 263 (1967) ................... 26 Stovall v. Denno, 388 U.S. 293 (1967) ........................ 26 United States v. Wade, 388 U.S. 218 (1967) ................... 26 State Cases People v. Bernier, 73 N.Y.2d 1006(1989) ................... 5, 24 People v. Boyer, 6 N.Y.3d 427 (2006) ..................... passim People v. Crimmins, 36 N.Y.2d 230 (1975) .............. 5, 23, 32 People v. Pacquette, 112 A.D.3d 405 (1 Dept. 2013) ......st 1, 23 People v. Dixon, 85 N.Y.2d 218 (1995) ........................ 30 People v. Duplessis, 16 A.D.3d 846 (3d Dept. 2005) ........... 31 People v. Gethers, 86 N.Y.2d 159 (1995) ...................... 32 People v. Gillette, 292 A.D.2d 250 (1 Dept. 2002) ..........st 31 People v. Gissendanner, 48 N.Y.2d 543 (1979) ................. 26 People v. Houston, 47 A.D.3d 424 (1 Dept. 2008) ............st 22 People v. Moss, 80 N.Y.2d 857 (1992) ......................... 32 People v. Newball, 76 N.Y.2d 587 (1990) .................. passim People v. O’Doherty, 70 N.Y.2d 479 (1987) ................ 25, 31 People v. Pittman, 31 A.D.3d 469 (2d Dept. 2006) ............. 30 People v. Polanco, 179 A.D.2d 531(1st Dept.), aff’d on opinion below, 80 N.Y.2d 1012 (1992) .................... 29 People v. Rodriguez, 79 N.Y.2d 445 (1992) .................... 27 People v. Terborg, 35 A.D.3d 1169 (4 Dept. 2006) ...........th 30 People v. Vasquez, 20 N.Y.3d 461 (2013) ...................... 25 People v. Wharton, 74 N.Y.2d 921 (1989) .................. passim iv Federal Statutes U.S. Const., Amend. XIV ............................ 3, 4, 23, 25 State Statutes C.P.L. §450.90(1) ............................................. 1 C.P.L. §470.05(2) ............................................ 36 C.P.L. §710.30 ........................................... passim C.P.L. §710.30(1)(b) ...................................... 5, 25 C.P.L. §710.30(3) ........................................ 26, 31 C.P.L. §710.40 ............................................... 26 C.P.L. §710.60 ............................................... 26 N.Y. Const., Art. I, §6 ............................ 3, 4, 23, 24 P.L. §220.39(1) ............................................... 1 The Certificate Granting Leave to appeal is reprinted in the1 Appendix at A.2. Citations to the Appendix are in parenthesis preceded by “A.” 1 COURT OF APPEALS STATE OF NEW YORK ----------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, : Respondent, : –against– : DEAN PACQUETTE, : Defendant-Appellant : ----------------------------------------x PRELIMINARY STATEMENT By permission of the Honorable Jonathan Lippman, Chief Judge of the Court of Appeals, granted June 5, 2005, appeal is taken1 from on order of the Appellate Division, First Department. That order, People v. Dean Pacquette, 112 A.D.3d 405 (1 Dept. 2013),st affirmed the June 11, 2008 judgment of the Supreme Court, New York County, as amended March 6, 2009, which convicted appellant after a jury trial of one count of criminal sale of a controlled substance in the third degree (P.L. §220.39(1)) and sentenced him to five years’ imprisonment followed by one and one-half years’ post-release supervision (Bartley, J., at hearing, trial and sentence). This Court has jurisdiction, pursuant to New York Criminal Procedure Law Section 450.90(1), to entertain the appeal and to review the question raised. The scope of the confirmatory 2 identification exception to the statutory notice provisions of C.P.L. §710.30 presents an issue of law reviewable in this Court because appellant properly preserved that exact issue in the trial court by timely objection, specifically and in detail moving to preclude the identification as falling outside the confirmatory identification exception. See e.g., People v. Boyer, 6 N.Y.3d 427 (2006); People v. Newball, 76 N.Y.2d 587 (1990); People v. Wharton, 74 N.Y.2d 921 (1989). Further, whether the judicially-crafted Wharton-scenario exception applies in a particular circumstance is purely a legal question that this Court has power and authority to review. See Boyer, 6 N.Y.3d at 431-432. On August 28, 2014, this Court granted appellant’s motion for leave to appeal on the original record and assigned Robert S. Dean as counsel on appeal. No motion for a stay of execution of sentence has been made, and appellant is serving his sentence. QUESTION PRESENTED Whether, in this buy-and-bust case, the prosecution’s failure to provide C.P.L. §710.30 notice of the pre-trial police- arranged identification of appellant by a “foot apprehension officer,” i.e., a field team officer other than the undercover purchasing officer, requires the preclusion of his identification testimony because the Wharton confirmatory-identification exception to the notice requirement does not apply 3 where, as here, the officer initially viewed the perpetrator fleetingly and at distance from across the street, at night, and lost sight of him for 10 to 15 minutes before the subsequent showup identification. (U.S. Const., Amend XIV; N.Y. Const., Art. I, §6). SUMMARY OF ARGUMENT In this buy-and-bust case, the court’s ruling following a mid-trial, ad hoc Wharton hearing that “foot apprehension officer” James Vanacore’s pre-trial identification of appellant Dean Pacquette was merely confirmatory was legal error. The inferior circumstances of Vanacore’s initial viewing of the suspect did not, as required, negate the possibility of later mis-identification. The “quality” of Vanacore’s initial viewing of the suspect should have been the critical factor in the Wharton analysis. People v. Boyer, 6 N.Y.3d 427, 432 (2006); see People v. Wharton, 74 N.Y.2d 921 (1989). “The risk of undue suggestiveness is obviated only when the identifying officer’s [initial] observation of the defendant is so clear that the [subsequent] identification could not be mistaken.” Boyer, 6 N.Y.3d at 432 (emphasis added). This Court has rejected any categorical rule exempting identifications from police officers as confirmatory “merely by labeling them as such,” instead, as pertinent here, providing a narrow exception only for identifications promptly following 4 face-to-face drug transactions. Wharton, 74 N.Y.2d 921 (1989). Here, Vanacore, a “foot apprehension officer” who was not the undercover purchasing officer, did not engage in a careful face-to-face transaction with the seller, or anything equivalent to it, which might have carried the bullet-proof assurance that his subsequent identification “could not be” the product of undue suggestiveness. Boyer, 6 N.Y.3d at 431. Rather, his initial observation of the fleeting drug transaction between the undercover purchasing officer and the suspected seller was made from a distance across the street, on a slight diagonal, past midnight, in a crowded West Village neighborhood. Then, since his primary job was to ensure the safety of the undercover purchasing officer, Vanacore promptly lost sight of the suspect for 10 to 15 minutes as he tailed the undercover purchasing officer off the set. Accordingly, Vanacore’s subsequent out-of-court identification of Pacquette at the showup was not confirmatory; it was not free from all doubt, it was not immune from suggestiveness. Therefore, notice of his identification had to be provided to the defense prior to trial. Because the People failed to provide the necessary notice of Vanacore’s showup identification of Pacquette, due process required that the court grant the defendant’s motion to preclude that identification and any related in-court identification. See U.S. Const., Amend XIV; N.Y. Const., Art. I, §6. Pertinent court documents such as the VDF, defendant’s Omnibus2 motion, the People’s Omnibus response and the court’s Omnibus decision and order, as well as the transcripts of the pre-trial Wharton hearing, the ad hoc Wharton hearing during trial, and the trial testimony of the People’s witnesses and the defense witness are reprinted in the Appendix. Citations to those portions of the Appendix are in parenthesis preceded by “A.” Names of witnesses are underlined when first mentioned. 5 In addition, because the tainted identifications contributed to the verdict, and the evidence without those identifications was not overwhelming, the error in failing to preclude the identifications cannot be considered harmless. See People v. Crimmins, 36 N.Y.2d 230, 237, 240-242 (1975). Therefore, Pacquette’s judgment of conviction should be reversed, Vanacore’s out-of-court and in-court identifications precluded, and a new trial ordered. See Boyer, 6 N.Y.3d at 434, People v. Newball, 76 N.Y.2d 587, 589 (1990); People v. Bernier, 73 N.Y.2d 1006(1989); C.P.L. §710.30(3). STATEMENT OF FACTS The People’s C.P.L. §710.30 Notice For One Officer Following appellant Dean Pacquette’s arrest for suspected narcotics sale, the People provided voluntary disclosure to the defense. In the Voluntary Disclosure Form (“VDF”) (A.5-8), the2 prosecutor, pursuant to C.P.L. § 710.30(1)(b), indicated his intention to call at trial one police witness who would identify, and had previously identified in a “[c]onfirmatory” showup, Pacquette as the perpetrator of the charged drug sale crime. The 6 VDF did not name the single identification witness (see A.6). Nor did the prosecutor provide notice of his intention to introduce at trial evidence that a second officer would identify Pacquette and had previously identified him in a confirmatory procedure (see A.5-8). Subsequently, defense counsel moved to suppress the noticed identification testimony on suggestiveness grounds (A.9-15). In a written response, the People stated that the identification was made by a police officer within 15 minutes of the criminal transaction, the officer “merely confirmed” that defendant had committed the crime, and no pre-trial hearing regarding the admissibility of the identification was required (A.17-21). Later, the court (Bartley, J.), granted the defense motion to suppress identification evidence to the extent of ordering a Dunaway/limited Wade hearing at which the parties could litigate preliminarily the issue of whether the undercover officer’s identification of Pacquette was confirmatory, pursuant to People v. Wharton, 74 N.Y.2d 921 (1989)(A.22). The Pre-Trial Dunaway/Wharton Hearing At the pre-trial Wharton hearing on March 26, 2006, detective Dennis Bradley was the sole witness. He testified about his detention and arrest of Pacquette following a buy and bust operation carried out by his team, and the circumstances surrounding a ‘drive by’ radio transmission he received from the The transcripts of the pre-trial Wharton hearing, the ad hoc3 Wharton hearing during trial, and the pertinent trial testimony of the People’s witnesses and the defense witness are reprinted in the Appendix. Citations to those portions of the Appendix are hereafter in parentheses preceded by “A.” Names of witnesses are underlined when first mentioned. 7 undercover purchasing officer identifying Pacquette (A.26-37). 3 The hearing court (Bartley, J) ruled that Bradley had probable cause to arrest Pacquette and that the undercover purchasing officer’s drive-by identification was confirmatory (A.45-48). Accordingly, the court denied the defense motion to suppress the undercover purchasing officer’s pre-trial and in- court identifications of Pacquette (A.48). The Trial The People’s Case Shortly after midnight on May 17, 2007, in the area of the East and West Villages, a Manhattan South Narcotics field team that included undercover purchasing officer 12403 (“UC ‘03") and detectives Dennis Bradley and James Vanacore conducted three buy and bust operations and arrested five individuals (A.88, 109, 133, 244-246). The second buy, and the incident relevant to this case, occurred near Washington Square Park (A.133, 244-245). UC ‘03, dressed in civilian clothes, was assigned as the undercover purchasing officer for the operation; he was equipped with approximately $200 in prerecorded buy money (A.90). At the time 8 of the operation, UC ‘03 was a relative undercover rookie: although he had been in the NYPD for four years, he had been an undercover narcotics officer with Manhattan South Narcotics for only four months (A.105). Vanacore, dressed in disheveled civilian clothes and wearing a wig, was assigned the role of “foot apprehension officer” (A.169). He testified that his primary responsibility that night was “watching the undercover [purchasing officer]” and ensuring his safety (A.188, 200-201). Thus, he contended, his role was somewhat akin to a “ghost[ ]” (A.200). Vanacore was a veteran undercover narcotics officer: he had been with Manhattan South Narcotics for 10 to 11 years (A.152). Bradley was assigned as the primary arresting officer (A.190, 218). UC ‘03's actual “ghost” officer that night, UC 7327 (A.107), did not testify at trial. At about 12:45 a.m., the undercover purchasing officer exited Washington Square Park and walked westbound to the corner of MacDougal and West 4 Streets, where he encountered anth individual of short stature whom he later learned was named Carter (A.91). Carter asked if the undercover purchasing officer was looking for anything, and the undercover purchasing officer replied that he “needed crack” (A.91). Carter said he would take him to “my guy” (A.91). Carter and the undercover purchasing officer walked together westbound on the south side of West 4th Street about one block until they reached the southeast corner of West 4 and Sixth Avenue, which is adjacent to a diner that wasth Later during cross examination, the undercover purchasing4 officer recalled that he had nicknamed Carter ‘JD Blue’ and the tall man ‘JD Gray Hood’ as memory-enhancing devices. He added, though, that “[w]ithout looking at my notes,” he could not remember the color of the tall man’s hat, or its insignia (A.119-121). Later that night at the precinct, the undercover purchasing5 officer vouchered the two ziplocks as evidence (A.101). NYPD criminalist Stacey Butler later tested the contents of the bags and concluded that cocaine was present in each bag (A.157). 9 open at the time (A.91, 96-97). There they met up with a another individual, a tall man. Although the undercover purchasing officer later testified on direct that the tall man was “around six feet tall, 180 pounds,” wearing a “gray sweatshirt with a white shirt underneath,” black pants and a “dark blue baseball cap” (A.92), on cross examination he could not initially recall the JD [John Doe] nickname he had bestowed upon him, nor the JD name he had given Carter, nor could he recall the color of the cap the tall man wore (A.116, 120). 4 Carter told the tall man that the undercover purchasing officer was “looking,” meaning looking to purchase narcotics (A.92, 121). The tall man asked the undercover purchasing officer how much he wanted, and the undercover purchasing officer replied that he had “twenty,” meaning $20 to spend (A.93). The tall man plucked from his pocket two small, pink-colored ziplocks and handed them to the undercover purchasing officer; the undercover purchasing officer gave the tall man $20 in prerecorded buy money (a ten, a five and five ones) (A.124, 133). At trial, the5 undercover purchasing officer could not recall which event 10 happened first –- his handing over money to the seller, or the tall man/seller handing over ziplocks: “A. I would have to look over my grand jury minutes to be 100-percent sure. Q: Because you don’t remember at this point; right? A: No” (A.124). During the brief drug transaction, the undercover purchasing officer and the tall man were within arm’s reach of each other and the diner’s lights and the street lights illuminated the scene (A. 96-97). But the undercover purchasing officer focused his attention on the tall man’s “hands [,]to make sure he didn’t have any weapons or that he wasn’t coming at me to hurt me” (A.97, 113). The undercover purchasing officer also looked at the tall man’s clothing and face, and mentally noted his height and age (A.97, 113). Across the street from the drug encounter, on the north side of West 4 Street, stood “foot apprehension officer” Vanacoreth (A.191, 195). From his vantage point, he later testified, he could see the undercover purchasing officer talking to the “short male black [Carter],” although he was too far away to hear what they were saying. He also observed the undercover purchasing officer and Carter walking westbound on the south side of 4th Street “to the vicinity of the Washington Square Diner” on the corner of West 4 Street and Sixth Avenue (A.192). As theth undercover purchasing officer and Carter walked along the south side of West 4 Street, Vanacore walked “somewhat parallel” toth them on the north side of the street, indicating that he was 11 across the street and somewhat behind them (A.192)(emphasis added). Vanacore testified that from his vantage point, he saw the undercover purchasing officer meet up with and talk to the tall man, whom Vanacore described at trial as “a tall male black wearing a white hooded sweatshirt, and he had a dark baseball cap on” (A.192). Vanacore observed the undercover purchasing officer and the tall man standing close to one another, with Carter nearby, and also glimpsed various hand movements. For example, he saw “hand motions which were indicative of transactions going on” (A.193-194). He was also able to see the undercover purchasing officer display a predetermined positive buy gesture (A.93, 125, 193-194). Vanacore offered no evidence, however, that he clearly saw the tall man’s facial features, such as facial hair or lack of same, nor did he describe the tall man’s face to the jury. The undercover purchasing officer’s entire interaction with the tall man was “a quick transaction,” lasting “under a minute,” according to Vanacore (A.194). While watching the undercover purchasing officer’s encounter, Vanacore radioed his field team Carter and the tall man’s activities and general race, gender and clothing descriptions (A.195). Vanacore did not see the undercover purchasing officer talking to anyone other than Carter and the tall man during that particular set, nor did he see anyone in the area resembling the tall man (A.194). After marking the positive 12 buy signal, Vanacore informed his field team that the undercover purchasing officer had indeed made a purchase and repeated his descriptions (A.194). The drug purchase concluded, the undercover purchasing officer exited the area and walked with Carter eastbound along West 4 Street back towards MacDougal Street (A.93, 195). Theth tall man took off in the opposite direction, westbound, according to Vanacore (A.204). When the undercover purchasing officer and Carter reached the corner of MacDougal and West 4 , they rounded it and headedth north, walking up MacDougal towards the next block, Washington Place (A.93-94). Vanacore, still on the north side of West 4th Street, opted to follow the undercover purchasing officer and Carter during their eastbound trek along West 4 Street awayth from the tall man (A.195). While watching and following them, Vanacore testified, he also managed to keep the tall man in his sight for a time (A.195). As Vanacore continued to follow the undercover purchasing officer and Carter, however, he, too, soon turned north on MacDougal as they did, and thus he lost sight of the tall man (A.204). There was no evidence that other team members on the set followed the tall man when he exited the scene. Vanacore testified that at about at this juncture, just before he had rounded the corner and lost sight of the tall man, he saw a field team van pull up in the vicinity of the diner. But no one got out of the van or put their hands on a suspect 13 (A.207). Arrest; Showup Identifications Bradley testified that field team members were stationed west of Sixth Avenue, parked at Cornelia Street, when they received the ‘positive buy’ radio transmission and descriptions from Vanacore (A.220). Within “[n]ot even a minute,” Bradley responded in his vehicle across Sixth Avenue from his original post to the southeast corner of West 4 Street and Sixth Avenueth (A.220, 222). There, standing “on the side” of the diner or standing in front of it, Bradley observed a suspect matching the tall man/seller’s description as relayed by Vanacore (A.239-240, 250). He described that person to the jury as “a tall male, black, approximately six foot, six foot two, maybe nineteen or twenty years old, wearing a blue—dark blue or black baseball hat and gray hooded sweatshirt and black jeans” (A.220). It was Pacquette, appellant. There were many other people in the immediate area of the diner but no one else was wearing that outfit, according to Bradley (A.222, 242). There was enough light for Bradley to see faces (A.243). As Bradley got out of his vehicle and approached, wearing his shield on a chain around his neck, appellant fled across Sixth Avenue and then northwards (A.222-223, 239). After a brief flight up Sixth Avenue, Pacquette stopped Bradley vouchered the cell phone recovered from Pacquette’s6 person (A.238), but no evidence was introduced that it contained drug contacts. He did not voucher the alleged second, broken cell phone for evidence and possible forensic analysis (A.237). 14 running after hearing Bradley identify himself verbally as an officer (A.249). Bradley detained Pacquette west of Sixth Avenue on Washington Place, placed handcuffs on him and brought him back to the southeast corner of Sixth Avenue and West 4 Street,th where they were surrounded by other members of the field team (A.224). After observing Pacquette in the custody of Bradley and the field team, the undercover purchasing officer radioed Bradley and positively identified Pacquette as the seller (A.98, 228- 229). Vanacore, too, who had by that time returned to the area of West 4 Street and Sixth Avenue by that point, radioed Bradleyth and identified Pacquette as the tall person he had earlier seen engaging in hand movements with the undercover purchasing officer (A.196-197, 205-206). When Bradley searched Pacquette he recovered $20 of prerecorded buy money from his right front pocket (a ten, a five and five ones), plus a cell phone, digital music player and miscellaneous papers (A.225-226). There was no evidence Bradley found drugs on Pacquette’s person, however (A.225, 243). Bradley testified that during the chase Pacquette threw a cell phone to the ground, breaking it (A.223, 225, 236).6 At trial, the undercover purchasing officer and Vanacore identified Pacquette as the drug seller, and Bradley additionally Pacquette testified that he received 29 singles in change7 (A.265, 273, 277). 15 identified him as the man he arrested on the night in question (A.92, 192-193, 221). The Defense Case Dean Pacquette, age 20, testified in his own defense (A.255- 278). He was a United States citizen who came to this country from the West Indies when he was six years old. At the time of trial, he lived with his mother in Brooklyn; his father resided in the West Indies (A.256-258). He was engaged to be married (A.210). He did not have a criminal record and had never before been convicted of a crime (A.260). He had never used cocaine but had smoked marijuana (A.260). On the night of his arrest, Pacquette had traveled to Manhattan to visit a female friend in the West Village. He had arrived in the West Village between 9:00 to 9:30 p.m. (A.262, 271-272). He had about $255 in his pocket (A.262). Feeling hungry, he stopped for a bite at the Washington Square Diner, on the corner of Sixth Avenue and West 4 Street, as soon as he gotth off the “A” train at the West 4 Street station (A.262-263,th 272). He paid for his $21 food-and-tip tab with a fifty-dollar bill, and he received bills in change from the diner’s till (A.263--264).7 Exiting the diner just before 10:00 p.m., Pacquette walked down its stairs to the street. Just then a stranger (whom he 16 described as an Asian man who did not identify himself as a police officer) advanced upon him and grabbed his hand (A.266). Pacquette, fearful that he was about to be attacked and robbed, as he had been in the past, ran for safety (A.266). Unaware that the stranger was, in fact, an undercover police officer, Pacquette sprinted up Sixth Avenue, accidently dropping one of his two cell phones from his front hoody pocket (A.268, 274). He testified that he willingly stopped when the officer pulled out his gun and shouted “Police” (A.268). He was later arrested, searched and placed in a van for a few hours (A.271). Pacquette told the jury that he did not possess or sell any drugs that night, he had never before seen the person described as Carter, and he had not interacted with anyone on the night in question except for the diner’s staff (A.265, 268, 275-276). During cross examination, he admitted that when he was arrested he was wearing a baseball hat, sweatshirt and t-shirt (A.269-270). Motion to Preclude Vanacore’s Identification Testimony On the first day of trial, immediately after the undercover purchasing officer completed his direct and cross examinations, but prior to Vanacore’s testimony, the prosecutor at a sidebar fully disclosed to the court and defense counsel that Vanacore would identify Pacquette at trial as the person he observed selling drugs to the undercover purchasing officer, and he would also testify that before trial he had identified Pacquette as the The prosecutor in his opening statement, which preceded8 counsel’s, indicated, over objection, that Vanacore would testify regarding his out-of-court identification of appellant (A. 74). 17 seller to Bradley at a post-sale, on-the-scene showup (A.139- 140). Defense counsel objected to Vanacore’s prospective identification testimony (A.137-141, 145, 180). Counsel noted that the People had given the defense C.P.L. §710.30 notice for a single police identifying witness – the undercover purchasing officer – that was the subject of a pretrial Wharton hearing (A.140-141). Counsel argued that Vanacore’s prospective pre- trial identification testimony, as well as his prospective in- court ID, thus was a “total surprise[ ]” and should be “precluded” because of lack of 710.30 notice (A.140-141). “It’s, to my mind, a question of due process and fundamental fairness that I be given notice of identifying witnesses in a case. That’s the purpose of 710 . . . .” (A.140). Counsel noted, too, that it was likewise unfair to allow the People to elicit Vanacore’s identification evidence because counsel had made his opening remarks to the jury based on his reasonable inference, in light of the VDF, that there was only one police identification, i.e., that of the relatively inexperienced undercover purchasing officer (A.141-142, 145). Counsel added that although he8 objected to a limited Wharton hearing, in the alternative he would consent to such a limited hearing (“reserving my rights and Vanacore had been an NYPD officer for a total of 14 years. For9 the past ten years, he had been assigned to the Manhattan South Narcotics Unit. For his first three and one-half years with the drug unit, he worked as an undercover officer (A.167-168). 18 exceptions, . . . I am prepared to go forward with the Wharton hearing” (A.146-147). In response, the People argued that although Vanacore was not the primary undercover purchasing officer, he was acting in a ghost capacity and therefore his proposed pre-trial identification testimony fit within the confirmatory exception to the notice requirement (A.137-139). The court, without ruling on the preclusion application, opined that the proper course would be to hold an ad hoc Wharton hearing to determine whether Vanacore’s prospective identification testimony was confirmatory in nature, and therefore admissible without the 710.30 notice (A.146). The ad hoc Wharton Hearing At the mid-trial ad hoc Wharton hearing, outside the presence of the jury, Vanacore testified that at the time in question he was working a buy and bust operation as a “foot apprehension officer”; his job was “to follow the undercover over his point-to-point radio, transmit any interaction going on; but first and foremost [my] primary responsibility at all times is the safety of [my] undercover” (A.169). 9 At about 12:45 a.m., he was in the vicinity of West 4th Street and MacDougal Street (A.171-172). He observed, from his 19 vantage point on the north side of West 4 Street, ath conversation across the street between the undercover purchasing officer and an individual [Carter]. He observed the undercover purchasing officer and the individual [Carter] walk westbound along the south side of West 4 Street towards Sixth Avenue, toth the vicinity of Washington Square Diner (A. 172, 178). While this occurred, Vanacore communicated his observations to his field team (A.172). He then observed the undercover purchasing officer in conversation with a second individual near the diner – a “male black who was tall, wore a light-colored sweatshirt and a dark baseball hat” (A.172). Furthermore, he observed the undercover purchasing officer and the tall man standing in close proximity to each other and making hand motions (A.173). Vanacore made it clear in his testimony that his vantage point on the north side of West 4 Street was not up close to theth undercover purchasing officer and the tall man, who were on the south side of the street (A.177). “I’m across the street” from them, he testified (A.177). In addition, Vanacore had not been standing straight across the street from the pair, but rather was on a diagonal, i.e., “in the vicinity, more towards Sixth Avenue” (A.178). He testified that the duration of the narcotics exchange, and his glimpse of the tall man/seller across the dark street, was “not long . . . less than a minute” (A.194). At the hearing, he did not describe any facial features of the tall man/ seller, nor did he say that he closely observed the tall man’s 20 face. After he observed the undercover purchasing officer’s positive buy sign, Vanacore radioed a description of the seller to the rest of the field team. When the participants in the transaction dispersed, Vanacore followed the undercover purchasing officer and the steerer [Carter] away from the area, rather than the tall man/seller. Thus, the seller was unwatched after the exchange by Vanacore because, as Vanacore testified about the aftermath of the exchange, he was “not exactly sure what was occurring . . . . I was still watching Mr. Carter go eastbound” (A.174, 179). Indeed, immediately following the drug sale, Vanacore’s attention was “[p]rimarily” directed at the undercover purchasing officer and secondarily, Carter (A.179). He did see a field team vehicle pull up near the seller sometime after the sale, however, and in response the seller ran (A.178). After about 10 to 15 minutes, Vanacore returned to the corner of West 4 and Sixth Avenue, where he observed Pacquetteth rear-handcuffed in the custody of Bradley and other team members (A.174-175, 179). At that point, Vanacore communicated with members of the team (A.176). No one else at the location at the time matched the description of appellant (A.175). Vanacore told the court he was certain at the time he saw appellant at the showup that appellant and the seller were one and the same, based on his observations that both were black males, “tall, [who] wore a light-colored hooded sweatshirt and a dark baseball hat (A.172, 21 175, 179). He also identified appellant at the hearing as the seller (A.172-173). At the end of the hearing, the prosecutor argued that Vanacore’s pre-trial identification was confirmatory, based on the physical and temporal proximity between the initial observation and the showup identification (A.180). Defense counsel, relying on the record, said the officer should not be allowed to “testify[ ] this way” in front of the jury (A.180). The Court’s Decision Noting it had conducted a Wharton hearing to determine the admissibility of Vanacore’s identification of Pacquette on May 17, 2007, the court ruled that the identification was “confirmatory” (A.182). In reaching its conclusion the court found that when Vanacore was “in the vicinity” of West 4th Street, he observed the undercover purchasing officer in conversation with Pacquette (A.181-182). Vanacore further observed hand motions between the undercover purchasing officer and Pacquette, as well as a positive buy signal from the undercover purchasing officer (A.182). Some 10 to 15 minutes later he observed Pacquette in the custody of the field team (A.182). Vanacore was an experienced officer trained in the art of identification; he had served 10 years with the Manhattan South Narcotics Unit, three and a half years of which were served 22 as an undercover officer (A.181). The court went on to legally conclude: “Defendant was apprehended within minutes of the transaction and was the only person in the vicinity who matched the description. I find that this identification was confirmatory” (A.182). Accordingly, the court denied counsel’s motion to preclude Vanacore’s pre-trial and in-court identification testimony for lack of 710.30 notice (A.182). Verdict & Sentence The jury convicted Pacquette of criminal sale of a controlled substance in the third degree (A.332). The court sentenced him to five years’ imprisonment, to be followed by one and one-half years’ post-release supervision (A. 339). The First Department’s Decision The First Department rejected appellant’s challenge to the trial court’s ruling refusing to preclude Vanacore’s identification testimony: The court properly determined that an identification made by an officer other than the purchasing undercover officer was confirmatory and thus did not require CPL 710.30(1)(b) notice (see People v. Wharton, 74 N.Y.2d 921 [1989]). The requirements of a police confirmatory identification were met, in that the officer at issue carefully observed defendant at close range throughout the drug transaction and made a prompt identification as part of a planned procedure (see People v. Houston, 47 A.D.3d 424 [1 Dept. 2008], lv denied 10st 23 N.Y.3d 841 [2008]; compare People v Boyer, 6 N.Y.3d 427 [2006]). The officer also transmitted a detailed and accurate description of defendant. In any event, any error was harmless because this officer’s identification of defendant was cumulative to that of the undercover officer, and it added little to the People’s otherwise overwhelming case (see People v. Crimmins, 36 N.Y.2d 230 [1975]. (People v. Dean Pacquette, reprinted at A.3-4). ARGUMENT POINT THE PROSECUTION’S FAILURE IN THIS BUY-AND- BUST CASE TO PROVIDE C.P.L. §710.30 NOTICE OF THE PRE-TRIAL POLICE-ARRANGED IDENTIFICATION OF APPELLANT BY A “FOOT APPREHENSION OFFICER,” I.E., A FIELD TEAM OFFICER OTHER THAN THE UNDERCOVER PURCHASING OFFICER, REQUIRES THE PRECLUSION OF HIS IDENTIFICATION TESTIMONY BECAUSE THE WHARTON CONFIRMATORY IDENTIFICATION EXCEPTION TO THE NOTICE REQUIREMENT DOES NOT APPLY WHERE, AS HERE, THE OFFICER INITIALLY VIEWED THE PERPETRATOR FLEETINGLY AND AT A DISTANCE ACROSS THE STREET, AT NIGHT, AND LOST SIGHT OF HIM FOR 10 TO 15 MINUTES BEFORE THE SUBSEQUENT SHOWUP IDENTIFICATION. U.S. CONST., AMEND. XIV; N.Y. CONST., ART. I., §6. In People v. Boyer, this Court explained that the “quality of the officer’s initial viewing must be a critical factor in any Wharton-type analysis.” 6 N.Y.3d 427, 432 (2006). “The risk of undue suggestiveness is obviated only when the identifying officer’s observation of the defendant is so clear that the identification could not be mistaken.” Id. (emphasis added). In 24 Boyer, the officer in question initially viewed the defendant on a fire escape for a few seconds, at night, from a distance of 40 to 50 feet. Id., 433. Given the less-than-optimal quality of the officer’s initial viewing, this Court declined to label the officer’s subsequent showup identification confirmatory, even though the initial viewing and subsequent showup occurred within a span of 30 minutes. Id. Applying the teachings of Boyer to this buy-and-bust case, it cannot be concluded the circumstances of foot apprehension officer Vanacore’s initial viewing of the suspected drug seller were such that, as a matter of law, his subsequent identification of appellant Dean Pacquette was immune from a risk of undue suggestiveness. Indeed, the initial viewing here stands “in stark contrast to the face-to-face viewing in Wharton,” see Boyer, 6 N.Y.3d at 433, nor did it equal – or even approximate – its quality. Accordingly, because the People failed to provide the necessary notice of Vanacore’s showup identification, and because the admission of that identification – and his in-court identification – cannot be considered harmless, Pacquette’s judgment of conviction should be reversed, Vanacore’s out-of- court and in-court identifications should be precluded, and a new trial ordered. See U.S. Const., Amend. XIV; N.Y. Const., Art. I., §6; see also Boyer, 6 N.Y.3d at 434; People v. Newball, 76 N.Y.2d 587, 589 (1990); People v. Bernier, 73 N.Y.2d 1006 (1989); An exception to the preclusion rule exists when “despite the10 lack of such notice” the defendant has moved to suppress such evidence and such motion has been denied . . . . “ Id. That exception is not relevant here as Pacquette sought preclusion, not suppression of Vanacore’s identification evidence. 25 C.P.L. §710.30(3). * * * It “could not be clearer,” Boyer, 6 N.Y.3d at 431, that when the People intend to offer at trial the testimony of a witness regarding his observation of the defendant during the commission of the crime, and the witness has previously identified him as such, C.P.L. §710.30 requires the People to notify the defense of such intention within 15 days after arraignment and before trial. C.P.L. §710.30(1)(b); see People v. Vasquez, 20 N.Y.3d 461 (2013); Boyer, 6 N.Y.3d at 431-432. Not only is the statutory mandate plain but the procedure is “simple.” Boyer, 6 N.Y.3d at 431. “The People serve notice, the defendant moves to suppress and the court holds a Wade hearing.” Id. Failure to provide timely notice requires preclusion of such evidence. C.P.L. §710.30(3). The preclusion remedy is a per se exclusionary10 sanction and prejudice is not a prerequisite. See C.P.L. §710.30(3); Boyer, 6 N.Y.3d at 431; People v. O’Doherty, 70 N.Y.2d 479 (1987). The notice statute was “a legislative response to the problem of suggestive and misleading pretrial identification procedures treated by the Supreme Court in Gilbert v. California 26 [, 388 U.S. 263 (1967)], United States v. Wade [, 388 U.S. 218 (1967)] and Stovall v. Denno [, 388 U.S. 293 (1967)].” People v. Gissendanner, 48 N.Y.2d 543, 552 (1979). In passing the statute, the Legislature recognized “that not all police-arranged identifications are free from unconstitutional taint.” Newball, 76 N.Y.2d at 590. “By requiring that notice be given, the statute acts to ensure that a defendant is given the opportunity, prior to trial, to test the reliability of the identification testimony that the People plan to offer against him. . . . .” Id., at 590-591 (internal citations omitted); see also Boyer, 6 N.Y.3d at 431; C.P.L. §§ 710.40, 710.60. This Court has recognized only two instances when, as a matter of law, the identification at issue “could not be” the product of undue suggestiveness. Boyer, N.Y.3d at 431. Under either so-called confirmatory identification circumstance, the People are not obliged to provide 710.30 notice and the defendant is not entitled to a Wade hearing. Id. As this Court noted in People v. Rodriguez, 79 N.Y.2d 445 (1992), a court may deny a Wade hearing (and thus no 710.30 notice would be required) where the court concluded, as a matter of law, that the identifying civilian witness knew the “defendant so well that no amount of police suggestiveness could possibly taint the identification.” 79 N.Y.2d 445, 453 (1992); see Boyer, 6 N.Y.3d at 432. This case concerns the scope of the second instance, the Wharton-type scenario. In Wharton, the initial viewing was made 27 by an experienced undercover purchasing officer who observed defendant “face-to-face” during a planned buy-and-bust drug operation. Wharton, 74 N.Y.2d at 922. The undercover purchasing officer then radioed his field team with a description of the defendant, who was immediately arrested. Id. Within five minutes of the arrest, the undercover purchasing officer drove past the defendant and identified him. Id. In People v. Boyer, this Court declined to extend Wharton’s “confirmatory identification” exception to any and all police identifications where the initial encounter with a suspect and the subsequent identification might be considered part of a single, integrated procedure and temporarily related. Boyer, 6 N.Y.3d at 433. If a Wharton-type exception is claimed, this Court explained, the “critical factor” “must be” the “quality of the officer’s initial viewing”. Id. “The risk of undue suggestiveness is obviated only when the identifying officer’s [initial] observation of the defendant is so clear that the [subsequent] identification could not be mistaken.” Id., at 432 (emphasis added). By its words, this Court indicated that the confirmatory exception was a limited one, and to get under its canopy the People have to show that the quality of the officer’s initial viewing was so stellar that his subsequent identification is immune from doubt. Boyer provides guidance for gauging the quality of the initial viewing: it must match the gold standard 28 quality of a trained undercover purchasing officer’s face-to-face observation of a drug suspect. Anything less would violate the plain and simple statutory mechanism established by the Legislature and would “permit the People to avoid their statutory obligation merely because a police officer’s initial viewing of a suspect and a subsequent identification might be temporally related.” Boyer, 6 N.Y.3d at 433. By continuing in this case to insist on the paradigmatic face-to-face Wharton scenario or its factual equivalent, this Court would remain mindful of the risk it expressed in Boyer -- that widening the exception would “draw the courts into countless factual disputes” Id. In Boyer, the circumstances of the officer’s initial viewing fell short of the requisite quality standard and thus did not exclude the possibility of misidentification from undue suggestiveness. The encounter was at night while the burglary suspect momentarily stopped on a fire escape some 40 to 50 feet above ground, where the officer was located. Boyer, 6 N.Y.3d at 433. This, this Court noted, stood in “stark contrast” to the face-to-face viewing in Wharton. Boyer, 6 N.Y.3d at 433. Here, the facts adduced at the ad hoc Wharton hearing demonstrate the similarly inferior “quality” of Vanacore’s initial viewing of the seller. See Boyer, 6 N.Y.3d at 432. For one thing, Vanacore’s initial viewing “was fleeting, unreliable and susceptible of misidentification.” Boyer, 6 N.Y.3d at 429, 432 (noting officer’s initial viewing was for only a few seconds Most of West 4 Street is 40 feet across. See Wikipedia entry,th11 http://en.wikipedia.org/wiki/4th_Street_%28Manhattan%29. 29 from 40-50 feet). The transaction between the undercover purchasing officer and the seller that Vanacore observed lasted no more than a minute. In addition, Vanacore’s initial viewing of the seller was accomplished from a distance of perhaps 40 to 50 feet away, because it was made from across the street (West 4 Street) and on a diagonal. Also, it was made at night --th 11 after midnight. This was no face-to-face encounter where the officer spent minutes staring at the suspect’s face. See People v. Polanco, 179 A.D.2d 531, 532 (1 Dept.)(highlighting thest “face-to-face” nature of the drug transaction when permitting the subsequent identification to be deemed confirmatory), aff’d on opinion below, 80 N.Y.2d 1012, 1014 (1992). Moreover, as Vanacore testified, his primary focus during the initial viewing was on the undercover officer, in order to ensure his safety. Thus unlike the undercover purchasing officer in the Wharton scenario, “this was not a situation where . . . he was placed on the scene specifically to make an identification.” Boyer, 6 N.Y.3d at 433. Small wonder that Vanacore at the ad hoc Wharton hearing did not offer any evidence that he carefully observed and noted the suspect’s facial features, beyond race and gender. Based on his initial viewing, his description of the suspect at the hearing was: “male black who was tall, wore a light-colored sweatshirt 30 and a dark baseball hat” (A.172). According to the hearing evidence, he made no report or transmission or statement prior to his showup identification that expanded that vague description. He never described the suspect’s facial features, hair, complexion, or even weight, prior to the showup. To be sure, Vanacore testified that as part of a planned operation he was close enough to observe the seller’s hand movements and the undercover purchasing officer’s buy signal. But observations of hand movements can be made from far away and do not, as a matter of law, foreclose the possibility that a subsequent showup identification is “free from doubt.” See People v. Dixon, 85 N.Y.2d 218, 220 (1995). And if the initial viewing was made under far-from-ideal circumstances, the temporal and spatial proximity elements of an integral police procedure cannot, by themselves, improve it. Therefore, like the situation in Boyer, the initial viewing here stood in stark contrast to the face-to-face transaction in Wharton. Boyer, 6 N.Y.3d at 433. See also People v. Terborg, 35 A.D.3d 1169 (4 Dept. 2006) (confirmatory exception notth applicable where officer’s initial viewing was fleeting and unreliable and it was not clear that the identification could not be mistaken as a matter of law) (internal citations and quotations omitted); People v. Pittman, 31 A.D.3d 469 (2d Dept. 2006)(officer’s initial viewing was not in the nature of a confirmatory viewing). 31 Also relevant to the Wharton-scenario analysis is whether Vanacore followed the suspect continuously from the time of his initial viewing to his subsequent identification at the point of arrest. See, e.g., People v. Duplessis, 16 A.D.3d 846, 848 (3d Dept. 2005) (field team officer’s pre-trial identification confirmatory where, among other things, he observed suspect continuously from time of drug sale to arrest); People v. Gillette, 292 A.D.2d 250, 250 (1 Dept. 2002 (same). That wasst not the case here, however. Vanacore, tailing the undercover purchasing officer to ensure his safety, lost sight of the seller. Indeed, there was a 10 to 15 minute gap from the time Vanacore last saw the suspected seller until the time he identified appellant at the showup. Because Vanacore neither initially obtained a sufficiently high quality look at the suspect nor followed him continuously, it cannot be concluded, as a matter of law, that his subsequent pre-trial identification of appellant carried no risk of misidentification. Accordingly, the trial court erred by deeming Vanacore’s pre-trial identification confirmatory as a matter of law. In addition, because the pre-trial identification was not confirmatory, and because the People’s noncompliance with the notice requirement was manifest, Vanacore’s identification testimony should have been precluded. The preclusion remedy is a per se exclusionary sanction and prejudice is not a prerequisite. See C.P.L. §710.30(3); O’Doherty, 70 N.Y.2d at 479. 32 The improper admission of Vanacore’s pre-trial and in-court identifications of Pacquette cannot be deemed harmless error, notwithstanding the First Department’s view. First, because the defense was identification, there is a “reasonable possibility that the [erroneous admission of Vanacore’s identification] might have contributed to defendant’s conviction” and thus the error cannot be considered “harmless beyond a reasonable doubt.” People v. Crimmins, 36 N.Y.2d 230, 237, 241-242 (1975). It makes no difference that a second undercover officer gave untainted identification testimony. See People v. Moss, 80 N.Y.2d 857 (1992) (holding that erroneous admission of tainted identification evidence in connection with one of two identification witnesses was not harmless error, even though the untainted witness testified that the accused was well known to him as a regular customer before the crime occurred); Newball, 76 N.Y.2d at 593 (finding that failure to preclude the identification testimony of an observing undercover officer to be harmful error even though the People also proffered testimony of a second police officer who had actually purchased the drugs during the buy and bust operation). In a nutshell, the error in admitting Vanacore’s identification testimony cannot be deemed harmless error “as [the identification evidence] was used to bolster the People’s case, which hinged on identification of defendant.” People v. Gethers, 86 N.Y.2d 159, 163 (1995). Too, Vanacore, a 10-year veteran of the narcotics unit, had 33 more gravitas and was a better identification witness than the undercover purchasing officer, who had been with the unit for only four months and was subject to a cross examination that impeached his credibility as an accurate observer, as discussed further below. Indeed, the People likely sought to introduce Vanacore’s non-noticed identification testimony at trial because they thought it would serve as a necessary repair measure and would contribute to the verdict. Indeed, absent Vanacore’s identification testimony, the evidence of Pacquette’s guilt was not overwhelming. The People would have had to rely primarily on the evidence elicited from the undercover purchasing officer. But his testimony was riddled with gaps and improbabilities and therefore he suffered from a credibility deficit. For example, although he was able to describe the physical characteristics of the suspected seller at trial in detail, he also testified that during the drug interaction, which lasted only about a minute, he was primarily looking at the suspected seller’s hands, not his facial features, for the sake of his own safety. Thus there is doubt whether the undercover purchasing officer really examined the suspect face-to-face. Since the undercover purchasing officer had only been an undercover officer for four months at the time of the instant events, his pre- occupation with the seller’s hands is certainly understandable. But it lessens the reliability of his observations of the 34 suspect’s features and his identification of Pacquette. Moreover, despite identifying Pacquette at trial as the seller and noting that he identified him pre-trial at the on- scene showup, the undercover purchasing officer could not initially remember the JD nickname he gave the seller, nor could he remember the color of the seller’s hat without first looking at his notes. Thus it seems possible that, notwithstanding his testimony, he actually independently remembered very little of what happened on the night in question during the ‘second’ of three undercover purchases, beyond the fact that after all the principals had left the corner after the second sale, his team arrested a hoody-wearing black male who turned out to be Pacquette. Furthermore, the evidence of the so-called “match” between the suspected seller’s clothes and Pacquette’s did not overwhelmingly point to Pacquette’s guilt. At trial, the purchasing undercover officer described the suspected seller as “around six feet tall, 180 pounds,” wearing a “gray sweatshirt with a white shirt underneath,” black pants and a “dark blue baseball cap” (A.92). While not impermissibly vague, this description is generic: it reflects a common male uniform for an urban spring night. The clothing set could have matched many young men in the West Village that night. To be sure, officers found pre-recorded buy money in Pacquette’s pocket after his arrest. But Pacquette’s explanation 35 was not improbable. He testified that after arriving in the area via the “A” train, he satisfied a late night appetite by stopping at the Washington Square Diner, near the West 4th St station. He further testified that he paid for his food with a fifty-dollar bill, and received a considerable amount of smaller bills as change. Although perhaps his recollection of the exact bills he received from the cashier dimmed with time, in substance he reasonably accounted for how he came to possess $20 in pre- recorded buy money. Further casting doubt on Pacquette’s guilt is that he had no drugs on him upon his arrest. Also, he gave a reasonable explanation for his flight: he did not recognize the plainclothes arresting officer to be an policeman, and when the man approached him, he panicked and ran, based on a prior experience of being robbed (A.226). In sum, the improper admission of Vanacore’s out-of-court and in-court identifications harmed Pacquette and contributed to the verdict. And the People’s evidence absent the tainted identifications remained less than overwhelming. * * * Counsel fully preserved this issue by repeatedly and specifically objecting to the introduction of Vanacore’s pre- trial and in-court identifications. Upon learning during the first day of trial that an un-noticed show-up identification by Vanacore had been conducted, counsel made a motion to preclude 36 (A.137-142, 145). Counsel argued at length that the absence of notice mandated the preclusion of any of Vanacore’s identifications. After the ad hoc Wharton hearing, counsel renewed his argument. The court, reaching the specific issue here, held that Vanacore’s pre-trial identification was confirmatory under Wharton and its ilk and, therefore, was exempt from the notice requirements (A. 182). The court’s specific but flawed ruling fully preserved the issue as well, as the First Department implicitly found (A.2-3). See C.P.L. §470.05(2). * * * For all the reasons discussed above, the People failed to serve required, timely notice of Vanacore’s pre-trial identification, and it was not confirmatory under the circumstances. Thus Vanacore’s pre-trial and in-court identifications must be precluded. See Boyer, 6 N.Y.3d at 433; Newball, 76 N.Y.2d at 589 (“the People’s failure to comply with the notice requirements of CPL 710.30 was improper and, accordingly, defendant’s motion to preclude should have been granted”). Since the error in admitting Vanacore’s tainted pre- trial and in-court identifications was harmful, reversal of Pacquette’s conviction is mandated. Accordingly, Pacquette’s judgment of conviction should be reversed, Vanacore’s pre-trial and in-court identifications precluded, and the case remanded for a new trial. 37 CONCLUSION FOR THE REASONS STATED IN THE POINT ABOVE, THIS COURT SHOULD REVERSE APPELLANT’S JUDGMENT OF CONVICTION, PRECLUDE VANACORE’S PRE-TRIAL AND IN-COURT IDENTIFICATIONS, AND ORDER A NEW TRIAL. Dated: New York, New York September 5, 2014 Respectfully submitted, Robert S. Dean Attorney for Defendant-Appellant Center for Appellate Litigation 120 Wall Street New York, New York 10005 (212) 577-2523 By _________________ CARL S. KAPLAN Of Counsel 1-A COURT OF APPEALS STATE OF NEW YORK ----------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, : Respondent, : -against- : DEAN PACQUETTE, : Defendant-Appellant. : ----------------------------------------x STATEMENT PURSUANT TO RULE 5531 1. The indictment number in the court order below was 2467/07. 2. The full names of the original parties were People of the State of New York against Dean Pacquette. There has been no change. 3. This action was commenced in Supreme Court, New York County, by the filing of an indictment. 4. This appeal is from an order of the Appellate Division, First Department, which affirmed the judgment of the Supreme Court, New York County, convicting appellant, following a jury trial, of one count of criminal sale of a controlled substance in the third degree (P.L. §220.39(1)) and sentencing him to five years’ imprisonment followed by one and one-half years’ post-release supervision (Bartley, J., at hearing, trial and sentence). 5. This is an appeal from an order of the Appellate Division, First Department, dated December 3, 2013, which affirmed the June 11, 2008 judgment of conviction of the Supreme Court, New York County, as amended March 6, 2009. 6. Appellant has been granted permission to appeal as a poor person on the original record. 2-A PRINTING SPECIFICATIONS STATEMENT The brief was prepared in WordPerfect®, using a 12-point Courier (New) font, and totaled 8,427 words.
