The People, Respondent,v.Dean Pacquette, Appellant.BriefN.Y.June 4, 2015To be argued by APL-2014-00135 CARL S. KAPLAN (15 Minutes Requested) Court of Appeals State of New York THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - DEAN PACQUETTE, Defendant-Appellant. REPLY 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 December 24, 2014 i TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . ii PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT IN THIS BUY AND BUST CASE, THE TRIAL COURT DEPRIVED APPELLANT OF DUE PROCESS WHEN IT FAILED TO PRECLUDE, DUE TO THE LACK OF NOTICE, A POLICE- ARRANGED SHOWUP IDENTIFICATION BY A “FOOT APPREHENSION OFFICER,” I.E., A FIELD TEAM OFFICER OTHER THAN THE UNDERCOVER PURCHASING OFFICER, WHERE THE OFFICER’S INITIAL VIEWING OF THE PERPETRATOR WAS BRIEF, AT A DISTANCE ACROSS THE STREET AND ON A DIAGONAL, AT NIGHT, AND THE OFFICER 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. . . . . 1 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . 14 ii TABLE OF AUTHORITIES Federal Cases Gilbert v. California, 388 U.S. 263 (1967) ................... 12 Stovall v. Denno, 388 U.S. 293 (1967) ........................ 12 United States v. Wade, 388 U.S. 218 (1967) ................ 9, 12 State Cases People v. Boyer, 6 N.Y.3d 427 (2006) ..................... passim People v. Cebollero, 252 A.D.2d 529 (2d Dept. 1998) ........... 8 People v. Cordero, 227 A.D.2d 290 (1 Dept. 1996) ............st 8 People v. Crimmins, 36 N.Y.2d 230 (1975) ................. 11, 12 People v. Duplessis, 16 A.D.3d 846 (3d Dept. 2005) ............ 8 People v. Gillette, 292 A.D.2d 250 (1 Dept. 2002) ...........st 8 People v. Gissendanner, 48 N.Y.2d 543 (1979) ................. 12 People v. Moss, 80 N.Y.2d 857 (1992) ......................... 13 People v. Newball, 76 N.Y.2d 587 (1990) .................. 12, 13 People v. Rodriguez, 100 N.Y.2d 30 (2003) .................... 11 People v. Rodriguez, 79 N.Y.2d 445 (1992) .................... 12 People v. Rosello, 298 A.D.2d 212 (1 Dept. 2002) ............st 8 People v. Wharton, 74 N.Y.2d 921 (1989) .................. passim Federal Statutes U.S. CONST., AMEND. XIV ....................................... 1 State Statutes CPL 710.30 ................................................ 4, 13 N.Y. CONST., ART. I, §6 ....................................... 1 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 Appellant files this brief in further support of his appeal and in reply to the prosecution’s response brief (“RB”), which the undersigned received on October 31, 2014. ARGUMENT IN THIS BUY AND BUST CASE, THE TRIAL COURT DEPRIVED APPELLANT OF DUE PROCESS WHEN IT FAILED TO PRECLUDE, DUE TO THE LACK OF NOTICE, A POLICE-ARRANGED SHOWUP IDENTIFICATION BY A “FOOT APPREHENSION OFFICER,” I.E., A FIELD TEAM OFFICER OTHER THAN THE UNDERCOVER PURCHASING OFFICER, WHERE THE OFFICER’S INITIAL VIEWING OF THE PERPETRATOR WAS BRIEF, AT A DISTANCE ACROSS THE STREET AND ON A DIAGONAL, AT NIGHT, AND THE OFFICER 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 his original brief, appellant argued that the prosecution was obliged to provide pretrial notice of Officer Vanacore’s 2 street-level, police-arranged identification of appellant as the individual he had allegedly seen 10 to 15 minutes earlier engage in a drug sale with an undercover purchasing officer. See App. Br., 23-37. We also argued that since Vanacore’s initial viewing of the perpetrator was short, at night, made from a distance of 40 to 50 feet across the street and on a diagonal, and then Vanacore lost sight of the perpetrator for 10 to 15 minutes before appellant’s arrest, it “stood in start contrast to the face-to-face viewing in Wharton,” see People v. Boyer, 6 N.Y.3d at 427, 433 (2006), nor did it equal – or even approximate its quality. Id. Indeed, Vanacore gave no evidence that he focused on or noted the suspect’s facial features, beyond race and gender (App. Br. 29). In response, the People assert that the identification was nevertheless “confirmatory” and, therefore, not subject to the notice and hearing requirements of the Criminal Procedure Law or preclusion if no notice was provided. See Respondent’s Brief (“RB”), 12-27. The prosecution’s argument in seriously flawed in many respects, but principally so in its failure to fairly confront the key holding in Boyer that the “critical factor” in the Wharton-type confirmatory identification scenario analysis must be the “quality of the officer’s initial viewing.” Id., 6 N.Y.3d 427, 432. “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). 3 The prosecution signals its failure to come to grips with Boyer in the “Applicable Legal Principles” section of its argument,” where it fails to cite Boyer at all, even though Boyer governs this case (RB: 18-21). The prosecution tries to get around Boyer and its cabining of Wharton to situations where the initial viewing’s quality is so high that the subsequent identification “could not be mistaken,” by emphasizing other factors, such as whether the identifying officer was “trained” in identification (RB: 22), whether the identification resulted from a “preplanned buy and bust operation” (RB: 21), and whether the identification came minutes after the crime (RB: 21). In doing so, the People essentially seek to create a buy and bust trained field team officer exception to the notice requirement. In purported support, the prosecution states that this Court in Wharton recognized a confirmatory identification exception to the notice and hearing rules when “the identification is made by a police officer as an integral part of a planned police procedure designed to ensure that the correct individual has been arrested” (RB: 18-19). That is a myopic capsule digest of Wharton as it omits the central fact that, unlike the situation here, Wharton involved a face-to-face initial observation of the drug seller by the purchasing undercover. People v. Wharton, 74 N.Y.2d 921, 922 (1989). Too, although this Court in its Wharton decision reasoned that 4 “[t]he viewing by this trained undercover narcotics officer occurred at a place and time sufficiently connected and contemporaneous to the arrest itself as to constitute the ordinary and proper completion of an integral police procedure,” Id., at 922-923 (reprinted in RB: 19), this Court also hastened to add (unremarked in the RB): “there is no categorical rule exempting from requested Wade hearings [and thus CPL 710.30 notice] confirmatory identifications by police officers by merely labeling them as such. Where the nature and circumstances of the encounter may warrant, a hearing should and undoubtably be held.” Boyer, 6 N.Y.3d at 433 (quoting Wharton, 74 N.Y.2d at 923). Furthermore, as the Boyer Court stressed, where a police officer neither knows the defendant personally nor observes him face-to-face in a planned undercover encounter, the notice requirements of CPL 710.30 apply. “To conclude otherwise . . . 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. Finally, an extended confirmatory exception in the buy and bust context such as the prosecution proposes, i.e., based on the officer’s training, the temporal relation of the initial viewing and the identification, and the nature of the planned buy and bust procedure, “would eliminate the protections offered by a Wade hearing [and the notice requirements] even when the initial police viewing . . . was fleeting, unreliable and susceptible to misidentification.” Boyer, 5 6 N.Y.3d at 429. The People’s reluctance to focus on the quality of Vanacore’s initial viewing is understandable, but not excusable, because under any fair analysis the quality of Vanacore’s initial viewing of the perpetrator must be deemed far from substantial – thus it was not immune from the risk of suggestiveness. When it finally gets down to brass tacks – Vanacore’s initial viewing of the perpetrator – the prosecution concedes, as it must, several key facts unfavorable to its position. For example, the prosecution admits that Vanacore viewed the drug sale at “night” (RB: 16). In fact, it was about 12:45 a.m. (App. Br. 18). It admits Vanacore saw the drug sale between the undercover purchasing officer and the seller while Vanacore was standing across the street and on a diagonal (“Vanacore was standing across West 4th Street . . . , a bit closer to 6 Avenue than the other two men”)th (RB: 16). Thus Vanacore did not engage in a face-to-face encounter. The prosecution also admits that Vanacore lost sight of the perpetrator for several minutes before identifying appellant, who at the time was handcuffed and in custody of the field team (“[After the drug sale,] Vanacore followed UC 12403 and Carter [a steerer], assisting in Carter’s apprehension. He did not participate in capturing defendant”) (RB: 17). In fact, Vanacore lost sight of the perpetrator for 10 to 15 minutes before his subsequent identification of appellant (App. Br. 20). The prosecution also implicitly concedes that at the mid-trial ad hoc 6 Wharton hearing, Vanacore did not offer any evidence that during the initial viewing he noted or studied the facial features of the perpetrator (RB: 27). The prosecution fails to note, however, that Vanacore’s initial viewing was short – “not long . . . less than a minute” (App. Br. 19). In light of all these facts and circumstances, as we argued in our opening brief (App. Br. 23-31), Vanacore’s initial viewing was far from stellar; it was not even close in quality to the initial face-to-face viewing of the purchasing officer in Wharton, and thus his identification was not immune from the risk of suggestion. The People oppose (RB: 25-26) our view that the circumstances of Vanacore’s initial viewing are reasonably analogous to the officer’s insubstantial, initial viewing in Boyer. But in the latter case the initial viewing, as here, was short, made at night, and occurred from a distance of 40 to 50 feet (see App. Br. note 11 re: the approximate distance). The prosecution wrongly claims in its brief that appellant’s argument is based on “a faulty premise” that “only purchasing undercover officers can make confirmatory identifications” (RB: 24). We never contended that only undercover purchasing officers who engage in face-to-face initial encounters with a suspect fit within the Wharton/Boyer exception, however. Quite the opposite, we specifically argued that in light of Boyer’s requirement of the stellar quality of the initial viewing, an officer’s initial viewing “must match” the gold standard of the quality of a trained 7 undercover purchasing officer’s face-to-face observation with a drug suspect (App. Br. 27-28). Relatedly, we asked this Court to continue to insist on the paradigmatic face-to-face Wharton scenario “or its factual equivalent” (App. Br. 28)(emphasis added). Thus, we indicated, it is not the role or rank of the officer that counts, it is the quality of his or her initial viewing. In theory, in a rare case, a non-purchasing undercover officer could get an initial look at a drug suspect that is the equivalent in quality and degree to the face-to-face encounter in Wharton. By the same token, in a particular case, an undercover purchasing officer might get a very poor initial look owing to distractions, interruptions, weather, etc. Certainly by adhering to the paradigmatic face-to-face Wharton scenario or its factual equivalent this Court, as we noted in our brief, would “remain mindful of the risk it expressed in Boyer – that widening the exception would “draw the courts into countless factual disputes.” (App. Br. 28, quoting Boyer, 6 N.Y.3d at 433). In any case, here, where Vanacore’s initial observation was made at night, across the street and on a diagonal, during an interval that was less than a minute, and where Vanacore promptly lost sight of the perpetrator for several minutes before appellant’s arrest, and where Vanacore offered no evidence that he noted or focused on the perpetrator’s facial features, his initial viewing fell far short of the Wharton/Boyer requirements and thus Although the prosecution cites several Appellate Division1 cases holding identifications made by “ghost” officers fell within the confirmatory identification exception, it did not cite one Court of Appeals case so holding. That’s because there is none. Moreover, the cited cases are easily distinguishable from appellant’s case on the facts. For example, the officer in Cordero was able to view the facial features of the defendant during the drug transaction and continuously viewed him to the arrest. People v. Cordero, 227 A.D.2d 290, 291 (1st Dept. 1996). The ghost in Cebollero made his initial observations during the afternoon, and continuously viewed the defendant until his arrest. People v. Cebollero, 252 A.D.2d 529, 529 (2d Dept. 1998). In Duplessis and Gillette, the ghosts also observed the defendant until his arrest. People v. Duplessis, 16 A.D.3d 846, 848 (3d Dept. 2005); People v. Gillette, 292 A.D.2d 250, 250 (1 Dept. 2002). In People v.st Rosello, the opinion listed no facts regarding the quality of the officer’s initial viewing. 298 A.D. 2d 212, 212 (1 Dept. 2002).st Moreover, all of these cases predate this Court’s 2006 decision in Boyer. 8 his identification was not immune from doubt. Plus Vanacore’s1 initial viewing was even weaker than the officer’s insufficient initial viewing in Boyer, because in that case the officer testified that he did – from his 40 to 50-foot vantage point – make out the facial features (facial hair) of the perpetrator. Boyer, 6 N.Y.3d at 429. Here there was no evidence from Vanacore about the perpetrator’s facial features. Moreover, even considering the prosecution’s purported important factor that Vanacore was an operative “trained” in identifications, and thus his showup identification was reliable (RB: 22), the fact is that Vanacore participated in the buy and bust procedure as a “foot apprehension officer,” not a ghost (App. Br. 18), and “first and foremost [my] primary responsibility at all times is the safety of [my] undercover” (App. Br. 18). Therefore it was not surprising that after the fleeting drug sale, Vanacore 9 followed the purchasing undercover officer and the steerer off the set, and lost sight of the drug seller. Although the prosecution seeks to minimize the import of Vanacore’s losing track of the perpetrator after the sale (RB: 26), the gap highlights Vanacore’s poor initial viewing of the perpetrator and the fleeting nature of his observations. The People also ask this Court to infer that despite his unfavorable vantage point, the night time environment, and the short duration of the transaction, Vanacore got a solid initial look at the perpetrator because he was able to see the undercover purchasing officer’s hand signals (RB: 23). But as we pointed out in our original brief, observations of hand movements can be seen from very far away and do not prove that the subsequent identification is free from any doubt (App.Br. 30). In sum, the quality of Vanacore’s initial viewing of the perpetrator – a proxy for his prior familiarity with the perpetrator – was poor and below the requisite standards, thus his subsequent identification was not of the type that “could not be mistaken.” Boyer, 6 N.Y.3d at 432-433. As the Supreme Court has stated, “the dangers for the suspect are particularly grave when the witness’s opportunity for observation was insubstantial, and thus his susceptibility to suggestion the greatest.” United States v. Wade, 388 U.S. 218, 229 (1967). The prosecution additionally argues that, in any event, the admission of Vanacore’s non-noticed out-of-court and in-court The prosecution said that our claim the undercover purchasing2 officer primarily was looking at the suspects hands during the fleeting drug transaction was a “misconstruction of the record” (RB: 29). But see A97 (“Q. When you handed the defendant the prerecorded buy money and he handed you the crack cocaine, what was your attention focused on? A. I was looking at the defendant’s hands to make sure he didn’t have any weapons or that he wasn’t coming at me to hurt me in any way and also looking at his clothing description to make sure that I could later ID him. I was looking at his face, his height and approximating his age”). See also A113 (“Q. And I believe it was your testimony that . . . what you were concentrating on when you were engaged in the face-to-face, hand-to-hand transaction with you person you say you bought crack from[,] that you were primarily concerned with his hands. Is that correct? A. (continued...) 10 identifications of appellant were harmless error (RB: 27-31). We argued, in contrast, that the error was not harmless because the People’s proof of appellant’s guilt, absent Vanacore’s identifications, was not overwhelming (see App. Br. 33-35). We respectfully refer this Court to our main brief’s argument that the evidence absent the error was not overwhelming. We note in passing, however, the prosecution places undue reliance on the remaining identification testimony of the undercover purchasing officer (RB: 28-29). But as we noted, he suffered from a credibility deficit in light of his testimony, among other things, that during the brief drug transaction he was primarily looking at the suspected seller’s hands for the sake of his own safety (App. Br. 33). Since the undercover purchasing officer had only been an undercover officer with the narcotics command for four months (App. Br. 8; A105), his preoccupation with the seller’s hands is understandable. But it lessened the reliability of his identification in the eyes of the jury. The prosecution also2 (...continued)2 When I’m within arm’s reach of an individual, I tend to look at his hands and his torso, and I also look up at his face for ID purposes”). In our main brief, we contended there was a “reasonable3 (continued...) 11 tries to minimize “as of no moment” the purchasing undercover officer’s failures at trial to initially remember the JD nickname he gave the seller, and the color of the seller’s hat without first looking at his notes (RB: 29-30; App. Br. 34). But these failures, coupled with his testimony about focusing on the seller’s hands, more than suggest that the rookie officer actually independently remembered very little of what happened that night during the second of three undercover purchases. Elsewhere, in a similar vein, the prosecution suggests the pre-recorded buy money found on appellant was a sign of his guilt (RB: 30). But unlike the situation in the case they cite to, People v. Rodriguez, 100 N.Y.2d 30, 32-33, 37 (2003), appellant in this case offered a credible explanation why he had the tainted money on him following his purchase of food from a diner (See App. Br. 34-35). Last, the People dispute our additional and independent harmless error argument that aside from the quantum and nature of the proof, the erroneous admission of Vanacore’s identifications nonetheless affected the verdict to a considerable degree (App. Br. 32-33; RB: 28, n. 12). Under either standard (“reasonable possibility” or “significant probability,” see People v. Crimmins, 36 N.Y.2d 230, 241-242 (175)), Vanacore’s identification testimony3 (...continued)3 possibility” the erroneous admission of Vanacore’s identifications might have contributed to appellant’s conviction and thus the error could not be deemed harmless (App. Br. 21; Crimmins, 36 N.Y.2d 230, 237, 241-242). The prosecution asserts the constitutional “reasonable possibility” standard does not apply here and instead the non-constitutional “significant probability” standard does (RB: 28, n. 28). The People do not cite a case in support of their position. On the other hand, there is support for our view the court’s erroneous admission of Vanacore’s identification testimony – which was non-noticed, and which was not the subject of a Wade hearing – violated appellant’s state and federal constitutional rights to due process. See, e.g., People v. Gissendanner, 48 N.Y.2d 543, 552 (1979) (noting the CPL 710.30 notice and hearing statute was “apparently a legislative response to the problem of suggestive and misleading pretrial identification procedures treated by the Supreme Court in Gilbert v. California, United States v. Wade and Stovall v. Denno. The focus of those decisions was on in-court identifications predicated on earlier police-arranged confrontations between a defendant and an eyewitness, typically involving the use of . . . showups . . . for the purpose of establishing the identity of the criminal actor”)(internal citations omitted); People v. Rodriguez, 79 N.Y.2d 445, 452(1992) (“The People bear the burden in any instance that a citizen identification procedure was ‘merely confirmatory.’ The usual treatment accorded such identifications – no CPL 710.30 notice or Wade hearing is necessary – requires that the exception be narrowly confined to situations where ‘suggestiveness’ is not a concern”); People v. Newball, 76 N.Y.2d 587, 590 (1990) (noting that CPL 710.30 is a “legislative attempt to deal effectively with the reality that not all police-arranged identifications are free from unconstitutional taint . . . . 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”). But as we argue above, under either standard appellant has shown that the erroneous admission of Vanacore’s tainted testimony greatly contributed to the conviction. 12 undoubtably pushed the jury into finding appellant guilty in this identification case. For one thing, as noted above, the undercover purchasing officer’s identification was beset with problems. Thus it is reasonably probable the jury’s assessment of his reliability reflected his deficits, and it follows that it cannot be said with any degree of certainty that had Vanacore’s testimony, which bolstered the undercover officer’s testimony, been excluded, the The prosecution objects to our main brief (App. Br. 32)4 citations to Newball, and Moss, asserting in a self-serving fashion that in those cases the remaining, untainted identification testimony was not as strong as the undercover purchasing officer’s in the present case (RB: 31, n. 13). But as we noted above and in our brief (App. Br. 33-34), the undercover purchasing officer’s identification of appellant was riddled with problems. 13 outcome would not have been different. See, e.g., People v. Newball, 76 N.Y.2d 587, 593 (1990); People v. Moss, 80 N.Y.2d 857 (1992). After all, Vanacore was a very good identification4 witness. Unlike the undercover purchasing officer, Vanacore was a 10-year veteran of the narcotics command and a courtroom regular. His gravitas, his clear testimony, his assuring tone, his clear-cut identification of appellant had to be a very significant factor in the jury’s deliberations. The People obviously sought to introduce Vanacore’s non-noticed identification testimony at trial precisely because they thought it would serve as a crucial repair measure following the undercover purchasing officer’s poor suppression hearing testimony and poor trial testimony. 14 CONCLUSION FOR THE REASONS HEREIN AND IN APPELLANT’S MAIN BRIEF, THIS COURT SHOULD REVERSE APPELLANT’S JUDGMENT OF CONVICTION, PRECLUDE VANACORE’S PRE-TRIAL AND IN-COURT IDENTIFICATIONS, AND ORDER A NEW TRIAL. Respectfully submitted, ROBERT S. DEAN Center for Appellate Litigation Attorney for Defendant- Appellant By________________ Carl S. Kaplan Of Counsel December 24, 2014