The People, Respondent,v.Dean Pacquette, Appellant.BriefN.Y.June 4, 2015APL-2014-00135 To be argued by BRIAN R. POULIOT (15 Minutes Requested) COVER Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - DEAN PACQUETTE, Defendant-Appellant. B R I E F F O R R E S P O N D E N T CYRUS R. VANCE, JR. District Attorney New York County Attorney for Respondent One Hogan Place New York, New York 10013 Telephone: (212) 335-9000 Facsimile: (212) 335-9288 danyappeals@dany.nyc.gov MARTIN J. FONCELLO BRIAN R. POULIOT ASSISTANT DISTRICT ATTORNEYS Of Counsel OCTOBER 31, 2014 TABLE OF CONTENTS Page TABLE OF AUTHORITIES .............................................................................................. ii PRELIMINARY STATEMENT ......................................................................................... 1 COUNTER-STATEMENT OF THE QUESTION PRESENTED ............................ 2 INTRODUCTION................................................................................................................ 2 THE EVIDENCE AT TRIAL ............................................................................................ 5 The People’s Case ....................................................................................................... 5 The Defense Case ..................................................................................................... 11 POINT DETECTIVE VANACORE’S CONFIRMATORY IDENTIFICATION OF DEFENDANT WAS PROPERLY ADMITTED AT TRIAL. .................................................... 12 A. The relevant record ............................................................................................ 14 B. The applicable legal principles ........................................................................... 18 C. Detective Vanacore’s testimony was properly admitted as a confirmatory identification of defendant ................................................. 21 D. Any error in admitting Detective Vanacore’s identification testimony was harmless ..................................................................................... 27 CONCLUSION ................................................................................................................... 32 TABLE OF AUTHORITIES FEDERAL CASES United States v. Wade, 388 U.S. 218 (1967) .......................................................... 18-20, 25 STATE CASES People v. Allen, 162 A.D.2d 538 (2d Dept. 1990) ............................................................ 20 People v. Boyer, 6 N.Y.3d 427 (2006) .......................................................................... 25-26 People v. Byer, 21 N.Y.3d 887 (2013).......................................................................... 27, 29 People v. Carter, 66 A.D.3d 529 (1st Dept. 2009) ........................................................... 20 People v. Cebollero, 252 A.D.2d 529 (2d Dept. 1998) .............................................. 21, 23 People v. Chico, 90 N.Y.2d 585 (1997) ............................................................................. 31 People v. Cordero, 227 A.D.2d 290 (1st Dept. 1996) ...................................................... 21 People v. Crimmins, 36 N.Y.2d 230 (1975) ...................................................................... 28 People v. Dixon, 85 N.Y.2d 218 (1995) ............................................................................ 22 People v. Duplessis, 16 A.D.3d 846 (3d Dept. 2005) ................................................ 21, 23 People v. Garnett, 293 A.D.2d 769 (3d Dept. 2002) ....................................................... 21 People v. Gillette, 292 A.D.2d 250 (1st Dept. 2002) ................................................. 21, 23 People v. Gordon, 76 N.Y.2d 595 (1990) ......................................................................... 20 People v. Graham, 211 A.D.2d 55 (1st Dept. 1995) ........................................................ 23 People v. Hatcher, 209 A.D.2d 639 (2d Dept. 1994) ....................................................... 20 People v. Mato, 83 N.Y.2d 406 (1994) .............................................................................. 20 People v. Moss, 80 N.Y.2d 857 (1992) .............................................................................. 31 People v. Mountain, 66 N.Y.2d 197 (1985)....................................................................... 30 People v. Newball, 76 N.Y.2d 587 (1990) ................................................................... 20, 31 -ii- People v. Nguyen, 90 A.D.3d 1330 (3d Dept. 2011) ....................................................... 21 People v. Pacquette, 112 A.D.3d 405 (1st Dept. 2013) ..................................................... 4 People v. Polanco, 179 A.D.2d 531 (1st Dept. 1992) ................................................ 20, 23 People v. Releford, 73 A.D.3d 1437 (4th Dept. 2010) .................................................... 21 People v. Roberts, 79 N.Y.2d 964 (1992) .............................................................. 19, 22, 27 People v. Rodriguez, 100 N.Y.2d 30 (2003) ...................................................................... 30 People v. Rodriguez, 79 N.Y.2d 445 (1992) ...................................................................... 18 People v. Rosello, 298 A.D.2d 212 (1st Dept. 2002) ....................................................... 21 People v. Russell, 83 A.D.3d 1463 (4th Dept. 2011) ....................................................... 21 People v. Schlaich, 218 A.D.2d 398 (1st Dept. 1996) ...................................................... 23 People v. Wharton, 74 N.Y.2d 921 (1989) ...................................... 4, 13-14, 16, 19-22, 27 STATE STATUTES CPL 710.30 ..................................................................................................... 5, 13, 18, 20, 24 CPL 710.30(1)(b) .............................................................................................................. 5, 18 CPL 710.30(2) ....................................................................................................................... 18 CPL 710.40 ............................................................................................................................ 18 Penal Law § 220.39(1) ............................................................................................................ 1 -iii- COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- DEAN PACQUETTE, Defendant-Appellant. BRIEF FOR RESPONDENT PRELIMINARY STATEMENT By permission of the Honorable Jonathan Lippman, Chief Judge of the New York Court of Appeals, defendant Dean Pacquette appeals from a December 3, 2013 order of the Appellate Division, First Department. By that order, the Appellate Division affirmed a June 11, 2008 judgment of the Supreme Court, New York County, convicting defendant, after a jury trial, of Criminal Sale of Controlled of a Controlled Substance in the Third Degree (Penal Law § 220.39[1]). The court sentenced defendant to a determinate term of five years in prison, to be followed by one and one-half years of post-release supervision. Defendant is currently incarcerated.1 COUNTER-STATEMENT OF THE QUESTION PRESENTED Did the trial court properly deem an undercover police officer’s identification of defendant to be confirmatory in nature and thus admissible in the absence of pretrial notice of the identification, where the experienced officer watched defendant engage in a hand-to-hand drug sale with the primary undercover officer, described defendant to the field team over the radio, and minutes later confirmed that defendant was the individual whom he had seen selling drugs to the primary undercover? The Appellate Division answered this question in the affirmative. INTRODUCTION On May 17, 2007, at around 12:45 a.m., a group of officers from the Manhattan South Narcotics Division were conducting undercover buy and bust operations near Washington Square Park. As is pertinent here, an individual named “Carter” led UC 12403 to defendant, who stood on the corner of West 4th Street and 6th Avenue. Carter told defendant that UC 12403 was “looking,” and defendant asked UC 12403 1 On July 21, 2008, in Supreme Court, Kings County, defendant was convicted of second-degree criminal possession of a weapon and sentenced to 15 years in prison followed by five years of post-release supervision (Docket Number 04787/2007). -2- how much he wanted. UC 12403 said that he had $20 to spend. UC 12403 then handed defendant $20 of prerecorded buy money, and defendant gave UC 12403 two small ziploc bags of crack-cocaine in return. Detective James Vanacore, a 14-year veteran of the police force trained to identify street-level drug transactions, watched the exchange from across the street and radioed descriptions of Carter and defendant to the rest of the field team. After the drug sale was complete, UC 12403 gave a “positive buy” signal, and the field team moved in on defendant’s location. Detective Dennis Bradley approached defendant, who ran away as soon as Bradley identified himself as a police officer. Ultimately, Bradley caught defendant, while Vanacore apprehended Carter. Upon searching defendant, Detective Bradley found in defendant’s pants pocket the same $20 in prerecorded buy money that UC 12403 had used to purchase the crack-cocaine. Bradley then brought defendant back to the corner of West 4th Street and 6th Avenue, while UC 12403 and Detective Vanacore separately made their way towards that location. From a short distance away, both UC 12403 and Vanacore viewed defendant, identifying him as the man who sold the undercover drugs 10 to 15 minutes earlier. On May 29, 2007, by Indictment Number 2467/2007, a Special Narcotics Grand Jury charged defendant with Criminal Sale of a Controlled Substance in the Third Degree. The People filed a voluntary disclosure form which indicated that they intended to introduce one confirmatory identification at trial. Defense counsel then -3- moved to suppress that identification. After a Wharton hearing, the court determined that UC 12403’s identification of defendant was indeed confirmatory and thus admissible. On March 27, 2008, defendant proceeded to a jury trial before the Honorable A. Kirke Bartley. In the People’s opening statement, the prosecutor told the jurors that they would hear testimony from both UC 12403 and Detective Vanacore, describing how they both viewed defendant after his apprehension and confirmed that he was the drug seller. During the first day of trial, and immediately prior to Vanacore taking the stand, defense counsel objected to Vanacore’s identification testimony on the basis that the People had not provided pretrial notice of such testimony. Following a Wharton hearing, the court determined that Vanacore’s identification was in fact confirmatory and thus admissible despite the absence of pretrial notice. On April 1, 2008, the jury convicted defendant of third-degree criminal sale of a controlled substance, and on June 11, 2008, Justice Bartley sentenced defendant as noted above. On December 3, 2013, the Appellate Division unanimously affirmed defendant’s conviction. People v. Pacquette, 112 A.D.3d 405 (1st Dept. 2013). The court held that the jury’s verdict was not against the weight of the evidence, noting that the “overwhelming” proof included, “[a]mong other things,” “the recovery of prerecorded buy money from defendant,” notwithstanding defendant’s “implausible explanation” for that fact. Id. -4- The Appellate Division also held that the lower court properly determined that Detective Vanacore’s identification of defendant was confirmatory and thus did not require CPL 710.30(1)(b) notice. As the Appellate Division explained, “the requirements of a police confirmatory identification were met,” in that Vanacore “carefully observed defendant at close range throughout the drug transaction,” and “made a prompt identification as part of a planned procedure.” Id. Additionally, the court noted that Vanacore “transmitted a detailed and accurate description of defendant” to the rest of his team. Id. Alternatively, the court recognized that any error in the admission of Vanacore’s identification was harmless, because the identification was “cumulative to that of the undercover officer, and it added little to the People’s otherwise overwhelming case.” Id. Finally, the Appellate Division noted that there was “no basis for reducing [defendant’s] sentence.” Id. On appeal to this Court, defendant argues that both the trial court and the Appellate Division were incorrect in ruling that Detective Vanacore’s identification of defendant was confirmatory and thus admissible despite the lack of timely CPL 710.30 notice. THE EVIDENCE AT TRIAL The People’s Case On May 17, 2007, a team of officers from the Manhattan South Narcotics Division held a tactical meeting to prepare for undercover operations near -5- Washington Square Park. The team included undercover officer UC 12403, Detective DENNIS BRADLEY, Detective JAMES VANACORE, and Sergeant Klein (UC 12403: A88-89, A106, A109; Vanacore: A190; Bradley: A218). Sergeant Klein acted as the team supervisor, and Bradley was designated the “arresting officer” (UC 12403: A88, A105; Vanacore: A190; Bradley: A218, A241). UC 12403 was the “primary undercover” assigned to conduct the buy and bust operations. He was provided with $200 of prerecorded buy money for that purpose (UC 12403: A88-90; Vanacore: A190-91; Bradley: A218-19).2 Detective Vanacore was designated the “foot apprehension officer” (Vanacore: A190). As such, Vanacore was tasked with following and looking out for the safety of UC 12403, as well as describing to the rest of the team, over the radio, what UC 12403 was doing and who he was interacting with (Vanacore: A188-90). Vanacore dressed in a disheveled manner and wore both a wig and a hat (Vanacore: A190, A198-99).3 2 UC 12403 was a four-year veteran of the New York Police Department, who had been working as an undercover officer for the Manhattan South Narcotics Division for about a year prior to trial (UC 12403: A82-83). As such, he was trained in observing narcotics transactions, purchasing drugs, identifying different narcotics, and identifying suspects by looking at individuals’ clothing, facial features, weight, and approximate ages (UC 12403: A83-84, A105). UC 12403 had made about 130 undercover narcotics purchases (UC 12403: A84) and been involved in about 500 separate buy and bust operations (UC 12403: A106). 3 Detective Vanacore had been a member of the New York Police Department for over 14 years prior to trial. He had worked as an undercover officer in the Manhattan South Narcotics Division for three and one-half years, making over 300 undercover narcotics -6- (Continued…) After the meeting, at around 12:45 a.m., UC 12403 took an unmarked car and parked on a side street near Washington Square Park (UC 12403: A90). He walked around the park and then went to the corner of MacDougal Street and 4th Street, where he encountered a man he later learned was named Carter (UC 12403: A91). Carter was a black male, about 40 years old, and wore a blue hooded sweatshirt with a light blue button-up shirt underneath (UC 12403: A91; see Vanacore: A191). Carter asked UC 12403 if he was “looking for anything,” and UC 12403 responded that he “needed crack.” Carter replied that he would take UC 12403 to his “guy” (UC 12403: A91, A121; see Vanacore: A191). He led UC 12403 westbound on West 4th Street, “walking slowly” and “looking behind him” (UC 12403: A91-92). Carter brought UC 12403 to defendant, who was at the corner of West 4th Street and 6th Avenue, near the Washington Square Diner (UC 12403: A92, A96, A100; Vanacore: A192).4 The street was illuminated by both street lights and the interior lights of the diner, shining through the glass front of the building (UC 12403: A97). Defendant stood about six feet tall, weighed about 180 pounds, and wore a purchases, before becoming a detective (Vanacore: A167-68). Prior to becoming an undercover officer, Vanacore received specialized training in narcotics identification, packaging, and pricing, and in how to identify suspects (Vanacore: A168). In fact, Vanacore was so experienced as an undercover narcotics officer and had participated in so many street operations that he had to physically disguise himself, beyond just wearing normal street clothing, so that he would not be recognized when he went undercover (Vanacore: A199- 200). 4 At trial, UC 12403 identified defendant as the man who sold him crack-cocaine (UC 12403: A92). -7- ______________________ (…Continued) gray sweatshirt with a white shirt underneath, black pants, and a dark blue baseball cap (UC 12403: A92; see Vanacore: A192).5 Carter told defendant that UC 12403 was “looking,” and defendant asked UC 12403 “how much [he] wanted.” UC 12403 told defendant that he had $20 to spend (UC 12403: A92-93, A121). Defendant took out two small pink ziploc bags that UC 12403 believed were $10 bags of crack-cocaine (UC 12403: A93).6 As the men stood very close to each other defendant handed UC 12403 the two bags. In return, UC 12403 handed defendant $20 in prerecorded buy money – one ten-dollar bill, one five-dollar bill, and five one-dollar bills (UC 12403: A93, A133). During the exchange, UC 12403 watched defendant’s hands to make sure that he did not have a weapon, but he also looked at defendant’s face, clothing, height, and age to make sure that he could later identify defendant (UC 12403: A97, A113-14). Detective Vanacore, who had been trailing behind UC 12403, watched defendant from the opposite side of the street as he conversed with UC 12403 (Vanacore: A192).7 After UC 12403 and defendant spoke briefly, Vanacore saw them 5 During undercover operations, UC 12403 would give suspects “JD” nicknames as a way to distinguish them for his own benefit (UC 12403: A114). UC 12403 assigned the name “JD Blue” to the steerer. He assigned the name “JD Grey Hood” to defendant (UC 12403: A117, A119-20). 6 Chemical testing later confirmed that both of the packages which defendant had sold to UC 12403 contained cocaine (NYPD Criminalist STACEY BUTLER: A154-55, A157, A161-62). 7 Detective Vanacore identified defendant at trial as the second individual with whom UC 12403 spoke (Vanacore: A192). -8- make “hand movements” while standing very close to each other (Vanacore: A193- 94). UC 12403 then gave a “positive buy signal” (UC 12403: A93, A125), confirming for Vanacore that the hand movements he had just witnessed had been a narcotics transaction (Vanacore: A194). Vanacore radioed the field team that there had been a drug sale; he described the actions of defendant, Carter, and UC 12403, and also their physical characteristics and clothing (Vanacore: A195).8 The field team, including Detective Bradley, arrived about a minute later (Vanacore: A195; Bradley: A220, A222-23). Bradley saw defendant, who matched the description Detective Vanacore had given on the radio – a tall black male, about six feet tall, 19 to 20 years old, wearing a gray hooded sweatshirt and a dark blue or black baseball hat (Bradley: A220).9 No one else in the area was dressed in a similar fashion (Bradley: A222). Detective Bradley got out of his car and approached defendant (Bradley: A222- 23). Bradley was dressed in plainclothes, but he took out his badge and said, “police, don’t move” (Bradley: A223, A239). At that, defendant took off running across West 4th Street to 6th Avenue (Bradley: A222-23, A233, A235, A239-40). At 6th Avenue, defendant “threw something to the ground,” smashing it (Bradley: A223, A235-36). 8 Detective Vanacore had not seen UC 12403 speak with anyone other than defendant and Carter, and very few people were on the street at that time (Vanacore: A205). Nobody else on the street looked like defendant (Vanacore: A194). 9 Bradley identified defendant at trial as the individual he saw at West 4th Street and 6th Avenue matching Vanacore’s description (Bradley: A221). -9- Bradley kept chasing defendant, shouting that he was a police officer “numerous times”; defendant eventually stopped running, just west of Washington Place and 6th Avenue, and was arrested (Bradley: A223, A235, A249). Bradley searched defendant, recovering from defendant’s right front pants pocket the $20 of prerecorded buy money – a ten-dollar bill, a five-dollar bill, and five one-dollar bills (Bradley: A225- 27).10 He then placed defendant in handcuffs and walked him back to 6th Avenue and West 4th Street for a “confirmatory identification” (Bradley: A224, A228, A235- 36). Next, about 10 to 15 minutes after the drug sale, both UC 12403 and Detective Vanacore returned to where the field team had defendant in custody, in order to view defendant. UC 12403 walked to Washington Place and 6th Avenue, while Vanacore went across the street from defendant to the intersection of West 4th Street and 6th Avenue (UC 12403: A93-94, A97-98, A101; Vanacore: A196-98, A205-06). UC 12403 had “[n]o doubt at all” that the team had apprehended the person who had sold him drugs (UC 12403: A98). Similarly, Vanacore was certain that defendant was the same individual he had seen earlier with UC 12403 (Vanacore: A197). 10 Detective Bradley also recovered a cell phone, an mp3 player, and some papers from defendant (Bradley: A225). He did not find any crack-cocaine (Bradley: A243). Subsequently, Bradley went back to 6th Avenue to look for the item defendant had thrown to the ground during the foot chase. Bradley found a phone that had been smashed; the damage was so extensive that he did not bother to voucher it for evidentiary purposes (Bradley: A225-26, A235-37). -10- The Defense Case On May 16, 2007, defendant DEAN PACQUETTE had the day off from his job stocking shelves at a Target store in Brooklyn, and he used the time to take his pregnant fiancée to a checkup with her doctor (Pacquette: A255, A260-61, A270-71). After that, defendant left Brooklyn and went to Manhattan alone to visit a friend (Pacquette: A262, A271-72). He was dressed in a sweatshirt, a t-shirt, and a baseball hat (Pacquette: A269-70), and he was carrying about $255 (Pacquette: A262). Defendant took the subway to West 4th Street, then called his friend and told her that he was hungry and was going to get something to eat (Pacquette: A262-63). He went into a nearby diner, where he ordered some food (Pacquette: A263, A272-73). Defendant paid $21 for the food, giving the cashier a fifty-dollar bill (Pacquette: A263-64). He received “twenty-nine singles” in change (Pacquette: A265, A273, A276-77).11 Defendant took his food and left the diner. Outside on the stairs, a man grabbed him and said, “what do you have in your pocket, what you got in the bag” (Pacquette: A266). Defendant thought that he was being robbed and ran away (Pacquette: A266-67). He did not know that the man who confronted him was a police officer, because the man did not show him a badge or identify himself as such 11 At trial, defendant was adamant that he did not receive either a ten-dollar bill or a five-dollar bill with his change (Pacquette: A273). Defendant testified that he was certain about the denominations of currency that he received, and that it was not possible that he was mistaken (Pacquette: A278). -11- (Pacquette: A268). While defendant was running, one of his two phones “fell” out of his sweatshirt pocket and onto the ground (Pacquette: A261, A268, A274). Eventually, the man chasing after defendant pulled out a gun and said “freeze, police,” and defendant stopped running (Pacquette: A268). Police officers then arrested defendant, taking his money and his phone and placing him into a van (Pacquette: A271). Defendant had neither a ten-dollar bill nor a five-dollar bill on his person when he was arrested (Pacquette: A277). At trial, defendant testified that he did not know Carter and had never seen him before (Pacquette: A265, A275-76). Defendant also denied having sold crack-cocaine to an undercover police officer on May 17, 2007 or having exchanged anything with anyone on the street corner that day (Pacquette: A265, A268-69, A276-77). Further, defendant testified that he did not receive $20 from an undercover police officer (Pacquette: A276-77). POINT DETECTIVE VANACORE’S CONFIRMATORY IDENTIFICATION OF DEFENDANT WAS PROPERLY ADMITTED AT TRIAL (Answering Defendant’s Brief). Defendant was ultimately convicted of selling two packages of crack-cocaine to an undercover officer on May 17, 2007, in exchange for $20. At trial, leading the jury to the inescapable conclusion of defendant’s guilt, the People called UC 12403 as a witness, who testified as to the contours of the drug transaction and identified -12- defendant as the crack-cocaine seller. The People also proved that when a field team officer identified himself and approached defendant, defendant fled and destroyed his cell phone, demonstrating his consciousness of guilt. Further, the People demonstrated that the arresting officer recovered the same $20 in prerecorded buy money from defendant’s pants pocket that UC 12403 had used to purchase crack- cocaine. In addition to that evidence, the People sought to introduce the testimony of Detective Vanacore, who while acting as an undercover backup officer to UC 12403, observed the drug sale from across the street and also made a contemporaneous identification of defendant. The People did not give pretrial notice of Vanacore’s identification testimony, but they maintained that such notice was not required because his identification was confirmatory. After a midtrial Wharton hearing, the court agreed that Vanacore’s testimony was admissible because it was confirmatory and thus exempt from the CPL 710.30 pretrial notice requirements. On appeal, defendant argues that both the trial court and the Appellate Division were incorrect in deeming Detective Vanacore’s identification of defendant confirmatory, and that the identification testimony therefore should have been precluded due to the People’s failure to provide pretrial notice of the testimony pursuant to CPL 710.30 (Defendant’s Brief: 25-31). Defendant further claims that the purported error was not harmless, despite the Appellate Division’s determination on that score (Defendant’s Brief: 32-35). Defendant is wrong. -13- A. The relevant record On July 13, 2007, when defendant was arraigned in the Supreme Court on the underlying felony indictment, the People served defense counsel with a Voluntary Disclosure Form (“VDF”). The VDF indicated that the People sought to introduce at trial one “confirmatory” identification of defendant that occurred around the same time and place of defendant’s arrest (VDF: A5-6). The identification witness was not named. Subsequently, defense counsel moved to suppress that identification testimony on the grounds that on the street “show-ups” are “inherently suggestive” (Defendant’s Omnibus Motion, Affirmation: A13-14). The court ruled that a Wharton hearing be conducted to determine whether the identification was in fact confirmatory (Decision and Order to Omnibus Motion: A22). At the pretrial Wharton hearing, Detective Bradley testified regarding defendant’s arrest and UC 12403’s subsequent identification of him at the scene (Hearing Testimony: A32-37). Bradley also described Detective Vanacore’s role in the operation; Vanacore had observed the drug buy from across the street and radioed a description of the sale and of defendant to the field team (Hearing Testimony: A32- 36). The hearing court ruled that UC 12403’s identification of defendant was confirmatory because “it took place within minutes” of the drug sale and “during the course of this buy-and-bust operation” (Hearing Decision: A48). -14- At trial, during the People’s opening statement, the prosecutor told the jury that it would hear testimony from UC 12403 and Detective Vanacore, who both viewed defendant shortly after the transaction and confirmed that the field team had arrested the correct person (Trial Transcript: A74). Later that day, at a bench conference outside the presence of the jury, defense counsel made an application to preclude Vanacore’s identification testimony, claiming that the People had not provided timely notice of that testimony (Trial Transcript: A140-41). Counsel noted that the People had disclosed only UC 12403’s confirmatory identification prior to trial, and that this new identification testimony thus came as a “total surprise.” Counsel argued that it was unfair to allow the People to elicit such testimony because he presented his opening remarks to the jury based on there being only one identifying witness (Trial Transcript: A140-41). The People responded that pretrial notice is not required when an officer’s identification testimony is only offered to confirm that the field team has arrested the correct individual (Trial Transcript: A138). Here, Detective Vanacore would only testify that he saw the primary undercover officer make a hand-to-hand exchange with defendant, and then later saw defendant in the custody of the field team (Trial Transcript: A138-40). Although Vanacore was not the primary undercover, the People argued, “he was acting in a ghost capacity,” and the rationale for the confirmatory identification pretrial notice exception thus applied (Trial Transcript: A139). -15- The court held that the proper course of conduct would be to conduct a Wharton hearing with respect to Detective Vanacore’s identification (Trial Transcript: A146). Outside the presence of the jury, Vanacore, a 14-year member of the NYPD, testified that he had received formal training in street-level narcotics operations and in how to identify suspects (Hearing Testimony: A167-68). On May 17, 2007, Vanacore was working with the other members of his field team and was assigned as a foot apprehension officer for the day’s buy and bust operations – his duties were essentially that of a ghost officer (Hearing Testimony: A169, A171). That night, Vanacore watched as UC 12403 and another man – Carter – walked towards the Washington Square Diner, located at 150 West 4th Street in Manhattan (Hearing Testimony: A171-72). Vanacore detailed their actions and described Carter to the field team over the radio (Hearing Testimony: A171-72). When UC 12403 and Carter were between the diner and the corner of West 4th Street and 6th Avenue (Hearing Testimony: A172, A177-78), Vanacore saw UC 12403 talk to a tall black male wearing a light-colored sweatshirt and a dark baseball cap (Hearing Testimony: A172). In court, Vanacore identified defendant as that second individual (Hearing Testimony: A172-73). Detective Vanacore was standing across West 4th Street from UC 12403 and defendant, a bit closer to 6th Avenue than the other two men (Hearing Testimony: A177-78). The weather was “clear,” and there were “very few” people out on the street (Hearing Testimony: A177). Vanacore watched as UC 12403 and defendant -16- stood in “close proximity” and “ma[de] hand motions towards each other” (Hearing Testimony: A173). After he saw UC 12403 give a “positive buy” signal, Vanacore alerted the field team (Hearing Testimony: A173-74). He then saw the team’s members move towards defendant’s location, and watched as defendant fled (Hearing Testimony: A174, A178). Vanacore followed UC 12403 and Carter, assisting in Carter’s apprehension (Hearing Testimony: A174). He did not participate in capturing defendant (Hearing Testimony: A174). After he had captured Carter, Detective Vanacore returned to West 4th Street and 6th Avenue, where he saw defendant in the custody of the field team (Hearing Testimony: A174-75, A179-80). Vanacore was certain that defendant was the same man he had seen UC 12403 speaking with about 10 to 15 minutes earlier (Hearing Testimony: A175). Upon seeing defendant, Vanacore “communicate[d]” with the members of the team (Hearing Testimony: A176). Following brief argument by the respective parties, the court denied the defense application to preclude Detective Vanacore’s identification testimony. The court found Vanacore to be a credible witness and made factual findings consistent with his testimony (Hearing Transcript: A181). The court stressed that “[d]efendant was apprehended within minutes of the transaction” and was “the only person in the vicinity who matched the description” (Hearing Transcript: A182). Moreover, Vanacore’s identification of defendant “took place within minutes of the transaction during the course of this buy and bust” operation (Hearing Transcript: A182). -17- Accordingly, the court held that Vanacore’s identification was confirmatory (Hearing Transcript: A182). B. The applicable legal principles When the People seek to introduce “testimony regarding an observation of the defendant either at the time or place of the commission of the offense or upon some other occasion relevant to the case,” CPL 710.30 requires them to give notice of that testimony to the defense within 15 days after arraignment and before trial. CPL 710.30(1)(b), (2). The rationale behind this rule is that the advance notice gives the defense an opportunity to move before trial to suppress that identification testimony by requesting a Wade hearing. See CPL 710.30(2), 710.40; United States v. Wade, 388 U.S. 218 (1967). Thus, the statutory notice requirement facilitates the way by which courts test the reliability of identifications. This Court has recognized two circumstances in which the proposed identification testimony leaves little chance for suggestiveness and unreliability, and thus the need for a Wade hearing—and concomitantly CPL 710.30 notice—is not required. The first is where there exists a prior relationship between the defendant and the identifier, and the two parties are “so familiar” with one another that there is “little or no risk” that police suggestion could lead to misidentification. See People v. Rodriguez, 79 N.Y.2d 445 (1992). The second situation is where the identification is made by a police officer as an integral part of a planned police procedure designed to -18- ensure that the correct individual has been arrested. See People v. Wharton, 74 N.Y.2d 921 (1989). As is pertinent here, in Wharton, this Court held that the trial court did not err in denying the defendant’s motion to suppress an officer’s identification testimony without a Wade hearing. See Wharton, 74 N.Y.2d 921. The Court reasoned that the “identification was made by a trained undercover officer who observed defendant during the face-to-face drug transaction knowing defendant would shortly be arrested,” and that “[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 922-23. This Court further noted that “[t]he undercover officer’s participation in the criminal apprehension operation at issue was planned, and he was experienced and expected to observe carefully the defendant for purposes of later identification and for completion of his official duties.” Id. at 923. Thus, this Court held that “the officer’s observation of defendant at the station house approximately three hours later was not of a kind ordinarily burdened or compromised by forbidden suggestiveness, warranting a lineup procedure or Wade hearing.” Id. at 922. Over the past 25 years, this Court has revisited Wharton on several occasions, affirming that identifications made by trained police officers contemporaneous to a planned police procedure are admissible despite the suggestiveness typically associated with showup identifications. See, e.g., People v. Roberts, 79 N.Y.2d 964 (1992) -19- (undercover officer made confirmatory identification of defendant where he purchased cocaine from the defendant, his field team arrested the defendant, and he identified the defendant at the stationhouse less than five hours later). Alternatively, this Court has held that a Wade hearing is necessary to evaluate police officer identifications not made during the course of a planned procedure, because of a significant passage of time. See, e.g., People v. Gordon, 76 N.Y.2d 595, 599 (1990) (officer made identification 10 days after seeing defendant, at the stationhouse and while handcuffed to two drug sellers from whom the officer had bought drugs on that day); People v. Newball, 76 N.Y.2d 587, 592 (1990) (“the passage of some four weeks between the initial viewing and the later identification” means that the identification “cannot be said to have the same assurances of reliability that were found to exist in Wharton”); People v. Mato, 83 N.Y.2d 406, 410-11 (1994) (officer’s identification of defendant was made 26 days after his purchase of drugs from defendant). Following along with this framework, all four departments of the Appellate Division have regularly applied Wharton and its progeny, holding that CPL 710.30 notice and Wade hearings are unnecessary where a trained undercover officer, participating in a buy and bust operation, views the arrestee shortly after a drug transaction and confirms that the field team has apprehended the correct individual. See, e.g., First Department: People v. Carter, 66 A.D.3d 529, 530 (1st Dept. 2009); People v. Polanco, 179 A.D.2d 531, 532-33 (1st Dept. 1992); Second Department: People v. Hatcher, 209 A.D.2d 639, 639 (2d Dept. 1994); People v. Allen, 162 A.D.2d 538 -20- (2d Dept. 1990); Third Department: People v. Nguyen, 90 A.D.3d 1330, 1334 (3d Dept. 2011); People v. Garnett, 293 A.D.2d 769, 770 (3d Dept. 2002); Fourth Department: People v. Russell, 83 A.D.3d 1463, 1464 (4th Dept. 2011); People v. Releford, 73 A.D.3d 1437, 1438 (4th Dept. 2010). Moreover, the Appellate Division has applied this rule with respect to confirmatory identifications made by ghost officers, or other officers who are part of a field team, in addition to the undercover officer who made narcotics purchase. See, e.g., People v. Duplessis, 16 A.D.3d 846, 848 (3d Dept. 2005); People v. Rosello, 298 A.D.2d 212, 212 (1st Dept. 2002); People v. Gillette, 292 A.D.2d 250, 250 (1st Dept. 2002); People v. Cebollero, 252 A.D.2d 529, 529 (2d Dept. 1998); People v. Cordero, 227 A.D.2d 290, 291 (1st Dept. 1996). C. Detective Vanacore’s testimony was properly admitted as a confirmatory identification of defendant Applying these factors to the case at hand, there is no question that the trial court and Appellate Division correctly determined that Detective Vanacore’s identification of defendant was confirmatory, and thus did not require pretrial notice. Indeed, Vanacore’s observation displayed all of the hallmarks of an archetypal confirmatory identification, as it resulted from a preplanned buy and bust operation and was made by an undercover officer minutes after the crime. As such, this case fits comfortably within Wharton and its progeny. -21- During a planned buy and bust operation, Detective Vanacore watched defendant sell drugs to UC 12403. About 10 to 15 minutes after the sale, he viewed defendant in the custody of the field team and confirmed that the team had apprehended the narcotics dealer. Notably, Vanacore was a 14-year veteran of the NYPD, with 10 years of experience working with the Manhattan South Narcotics Division where he made over 300 undercover narcotics purchases and was specially trained in how to identify drug suspects. See People v. Dixon, 85 N.Y.2d 218, 224 (1995) (recognizing “the identifying officer’s expertise” as a factor in deeming an identification confirmatory); Wharton, 74 N.Y.2d at 923 (identification testimony confirmatory where, inter alia, it was made by an “experienced” officer “expected to observe carefully”). Beyond that, Vanacore’s identification of defendant was a fundamental aspect of the preplanned police procedure. See Wharton, 74 N.Y.2d at 922-23 (the identification “constitute[d] the ordinary and proper completion of an integral police procedure”); see also Roberts, 79 N.Y.2d at 966. Moreover, there was no question as to Detective Vanacore’s ability to view defendant during the drug transaction. The weather was “clear” that night, and there were very few people on the street, so Vanacore could not have mixed up defendant with anyone else. Also, Vanacore stood just diagonally across the street from defendant and UC 12403, which afforded him an excellent opportunity to carefully watch defendant and his interactions with the primary undercover officer. Defendant -22- also stood near a diner and was thus necessarily illuminated by its lights, further enhancing the quality of Vanacore’s vision. Indicative of Detective Vanacore’s excellent opportunity to view defendant as he performed the illicit deed was the fact that Vanacore relayed to the field team a detailed description of defendant’s physical characteristics and clothing. See Duplessis, 16 A.D.3d at 848 (supervising officer “observed defendant and the scene” and “radioed a description of the defendant”); Gillette, 292 A.D.2d at 250 (ghost officer “got a good look at defendant” and described him to field team); Cebollero, 252 A.D.2d at 529 (ghost officer took note of defendant’s gender, nationality, height, and clothing); Polanco, 179 A.D.2d at 532 (undercover officer was “accorded an excellent opportunity to view defendant” as he was able to provide “physical and clothing descriptions”). Vanacore also testified that he was able to see all of the subtle actions that comprised both the drug sale and UC 12403’s “positive buy signal.” As both hand-to-hand drug sales and positive buy signals are comprised of discreet gestures that are intended to go unnoticed by observers in even the closest proximity, Vanacore’s ability to witness such gesticulations speaks volumes about the quality of his viewing. See People v. Graham, 211 A.D.2d 55, 59 (1st Dept. 1995) (recognizing that “street-level drug sales typically involve small, easily concealable packages” and that “concealment is itself a common characteristic of illegal conduct”); see also People v. Schlaich, 218 A.D.2d 398, 401 (1st Dept. 1996). -23- In short, not only was Detective Vanacore’s identification of defendant a routine aspect of a preplanned buy and bust operation, but there was every reason to believe that Vanacore was afforded an excellent view of defendant and that the resulting identification was beyond reproach. Nonetheless, on appeal, defendant argues that the trial court and Appellate Division both wrongly concluded that Detective Vanacore’s identification of defendant was confirmatory and thus did not require pretrial CPL 710.30 notice. Defendant contends that the confirmatory identification exception to the notice requirement is “limited,” and that in order to avail themselves of that exception, “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” (Defendant’s Brief: 27). Defendant claims that the “gold standard” of a police identification is “a trained undercover officer’s face-to-face observation of a drug suspect” (Defendant’s Brief: 27-28). Defendant’s argument is based on a faulty premise. As defendant would have it, only purchasing undercover officers can make confirmatory identifications, and not ghost officers or other members of the street narcotics team who contemporaneously observed the crime as part of a planned operation. However, this has never been the state of the law, nor is there any sound policy reason for such a categorical rule. Tellingly, defendant offers no sound reason why an identification made by a ghost officer minutes after a drug transaction in which he confirms that the field team -24- apprehended the right person, should be treated any differently under the law than an identification made by an undercover purchasing officer. Simply put, it would be senseless to treat these similarly-situated police identifications differently and hence require the trial courts to conduct unnecessary Wade hearings in situations where a police officer identification was not the product of undue suggestiveness. See Boyer, 6 N.Y.3d at 434 (Smith, dissenting) (“requiring a Wade hearing in cases . . . where the chance that the hearing will lead to the suppression of evidence is vanishingly small, is a waste of time and puts an unjustified burden on the criminal justice system”). Nor is defendant correct in his attempt to analogize the instant case to People v. Boyer, 6 N.Y.3d 427 (2006) (see Defendant’s Brief: 28-30). In Boyer, this Court held that a police officer identification was not confirmatory where an officer responded at night to a radio call of a robbery in progress, saw the defendant as he was running up a fire escape 40 to 50 feet above him, and identified the defendant after he was apprehended by other officers. Id. at 429-30. In its decision, this Court stressed the fact that “this was not a situation where the officer was placed on the scene specifically to make an identification, and was therefore focused on identifying the suspect to a backup team.” Id. at 433. Defendant points out that in the instant case, as in Boyer, the identifying officer’s observation was brief (Defendant’s Brief: 28-29). But in the case at hand, Detective Vanacore’s surveillance of defendant was part of a planned operation in which he was focused on observing details of drug suspects so that he could relay -25- those details to the field team officers, who were tasked with apprehending the suspects. In contrast, the officer in Boyer was responding to a 911 call and was investigating the rapidly-unfolding situation when he happened to run into the defendant. During the fleeting moment when the officer crossed paths with Boyer, he was trying to assess the situation at hand, and not record distinctive details of possible suspects for a subsequent identification. Defendant also notes that Detective Vanacore was positioned about 40 feet away and across the street from the drug sale—the same distance away from the defendant as the officer in Boyer (Defendant’s Brief: 28-29). But in Boyer, the quality of the viewing was much weaker. In that case, the police officer was on the ground, looking up a fire escape at the suspect who stood four or five stories above him. Boyer, 6 N.Y.3d at 429. Although the officer in Boyer was able to provide a description of the suspect, his vantage point was necessarily poorer than in the instant case, as he was essentially looking up at the soles of the suspect’s feet. Vanacore, though, occupied a much more beneficial position across the street from defendant. Equally unpersuasive are defendant’s additional attacks on the quality of Detective Vanacore’s viewing. First, defendant contends that Vanacore was focused on UC 12403’s safety, and not on making identifications of drug sellers (Defendant’s Brief: 29). But these two goals are not mutually exclusive; carefully watching suspects who interact with the primary undercover officer necessarily achieves both ends. Second, defendant highlights the fact that Vanacore’s description focused on -26- defendant’s race, height, and clothing, but said nothing about defendant’s facial features (Defendant’s Brief: 29-30). But Vanacore was simply relating the description that would best help the field team apprehend the correct individual. Indeed, a description of the shape of the suspect’s nose would not be nearly as helpful to the field team officers as the suspect’s height, clothing, and skin color – descriptors that are more readily discernable from a distance. Third, defendant complains that there was a gap of time between the drug sale and Vanacore’s identification of defendant; in other words, he stresses that Vanacore did not continuously follow defendant from the sale to his arrest (Defendant’s Brief: 31). But this argument makes no sense, because had Vanacore followed defendant until his arrest, there would be no need for a confirmatory identification. And in any event, the gap of 10 to 15 minutes did nothing to cast doubt on the reliability of Vanacore’s identification. Certainly, in both Wharton and Roberts, this Court found identifications to be confirmatory despite the fact that hours had elapsed since the crime had taken place. See Roberts, 79 N.Y.2d 964; Wharton, 74 N.Y.2d 921. D. Any error in admitting Detective Vanacore’s identification testimony was harmless In any event, had there been any error in admitting Detective Vanacore’s identification of defendant – which there was not – that error would have been harmless. See People v. Byer, 21 N.Y.3d 887, 889 (2013) (“[e]rrors of law of nonconstitutional magnitude may be found harmless where the proof of the -27- defendant’s guilt, without reference to the error, is overwhelming and where there is no significant probability that defendant would have been acquitted had this evidence been excluded”) (internal quotations and citation omitted).12 Even in the absence of Vanacore’s identification testimony, the evidence at trial overwhelmingly proved that defendant was the drug seller. The primary undercover officer identified defendant as the drug seller, the prerecorded buy money that had been used to purchase the drugs was found on defendant’s person, and defendant fled from the field team officers, displaying a consciousness of guilt. To begin, UC 12403 unequivocally identified defendant as the man who had sold him crack-cocaine, and the jury had every reason to believe his testimony. The drug sale was made in a well-lit area, and nothing obstructed UC 12403’s view of defendant. The two spoke with each other and engaged in a face-to-face transaction, which afforded UC 12403 every opportunity to study defendant’s appearance in order 12 Defendant cites People v. Crimmins, 36 N.Y.2d 230 (1975) and suggests that admitting Detective Vanacore’s identification testimony was automatically harmful, seemingly regardless of the other proof at trial, since “the defense was identification” and there is a “reasonable possibility” that the testimony “might have contributed” to the conviction (Defendant’s Brief: 32). However, in so arguing, defendant quotes the Federal rule for constitutional error, while ignoring the fact that in the very same case this Court explicitly stated that “[o]ur State test with respect to nonconstitutional error is not so exacting as the Supreme Court test for constitutional error.” Id. at 241-42. At bottom, “an error is prejudicial in this context if the appellate court concludes that there is a significant probability, rather than only a rational possibility, in the particular case that the jury would have acquitted the defendant had it not been for the error or errors which occurred.” Id. at 222. Here, as discussed throughout this brief, there is no “significant probability” that the jury would have acquitted defendant absent Vanacore’s identification testimony. -28- to make the resulting identification which he was well-aware would be necessary. Such an arm’s length encounter resulted in the quintessential “gold standard” for a police officer identification of a suspect, as even defendant’s brief suggests (see Defendant’s Brief: 27-28). In an attempt to limit the probative force of UC 12403’s identification testimony, defendant suggests that UC 12403 was “primarily looking at the suspected seller’s hands, not his facial features” during the drug sale (Defendant’s Brief: 33). This argument, however, rests solely on a misconstruction of the record. On direct examination, UC 12403 testified that he was “looking at the defendant’s hands,” but “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” (UC 12403: A97). On cross-examination, UC 12403 added that when he is “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,” and that when he is “standing in front of somebody, you kind of see it all at once. I don’t specifically just look at someone’s hands, specifically just look at their shirt and then specifically look at their face. I look at everything as a whole” (UC 12043: A113-14). Hence, defendant’s argument, which relies on citing a fragment of UC 12403’s testimony out of context, is entirely baseless. Defendant also highlights the fact that, at trial, UC 12403 did not initially recall the “JD nicknames” he assigned to the steerer and seller during the buy and bust operation (Defendant’s Brief: 34). But that argument is of no moment, as such names -29- are simply created by undercover officers in the midst of operations and are used only for the limited purpose of helping the undercover to distinguish between suspects during those missions. This argument has no bearing on UC 12403’s ability at trial to recall the person he observed face-to-face while purchasing drugs. In any event, when his memory was refreshed, UC 12403 did recall the JD nicknames that he had invented. Further supporting UC 12403’s identification was that defendant was wearing clothing that matched the description of the suspect, as provided by both UC 12403 and Detective Vanacore. Defendant attempts to blunt the force of this proof by arguing that he was wearing “a common male uniform for an urban spring night” (Defendant’s Brief: 34). That may be so, but defendant’s attire, rather than excluding him as the drug dealer, included him in the class of people described as the dealer and was thus probative of his guilt. See People v. Mountain, 66 N.Y.2d 197, 202-03 (1985) (evidence that defendant’s blood type was the same as that of the rapist was probative even though the blood type was common). Beyond that, there was simply no legitimate explanation for defendant to have on his person the exact same $20 of prerecorded buy money that UC 12403 had exchanged for drugs. See People v. Rodriguez, 100 N.Y.2d 30, 32-33, 37 (2003) (error in prosecutor’s summation was harmless in light of the “overwhelming evidence” of defendant’s guilt, which included recovery of prerecorded buy money from defendant). Defendant did his best to explain away this prerecorded buy money at -30- trial (see Defendant’s Brief: 34-35), claiming that he had received $29 in change after buying food at the nearby diner. However, he adamantly maintained that he received 29 one-dollar bills in change, while the prerecorded buy money consisted of one ten- dollar bill, one five-dollar bill, and five one-dollar bills. To top it all off, when the officers approached defendant, he fled and threw one of his phones to the ground, smashing it. This evidence clearly displayed his consciousness of guilt. See People v. Chico, 90 N.Y.2d 585, 591 (1997) (evidence of defendant’s consciousness of guilt included his flight from police officers). While defendant argues that he did not know that Detective Bradley was a police officer when he approached (Defendant’s Brief: 35), this claim relies only on defendant’s own, self-serving testimony. In contrast, Bradley testified that he identified himself as a police officer by displaying his badge and yelling “police, don’t move” (Bradley: A223).13 13 Finally, defendant cites People v. Moss, 80 N.Y.2d 857 (1992) and People v. Newball, 76 N.Y.2d 587 (1990) for the proposition that improperly introducing identification testimony is harmful even where “a second officer g[ives] untainted identification testimony” (Defendant’s Brief: 32). But those cases certainly did not involve additional identification testimony as strong as that provided by UC 12403, a police officer who engaged in a face-to-face encounter with defendant and identified him immediately after the drug sale. See Moss, 80 N.Y.2d at 858 (second identification provided by store owner); Newball, 76 N.Y.2d at 593 (second identification made 28 days after the officer encountered the drug suspect). Moreover, in Moss and Newball, the additional identification testimony was the only corroborative proof of the defendants’ guilt. Here, however, further powerful evidence, such as the prerecorded buy money recovered from defendant’s person, also established his identity. -31- * * * In sum, Detective Vanacore’s identification of defendant was confirmatory and thus exempt from the pretrial notice requirements, as it was made by an undercover officer who watched defendant during a preplanned buy and bust procedure and identified him contemporaneous to that operation. Had there been any error in admitting that testimony, it would have been harmless. Defendant was identified by the primary undercover officer, was found with the prerecorded buy money on his person, fled at the sight of the police officers, and offered only a befuddling and nonsensical story in response to the People’s case. CONCLUSION The order of the Appellate Division should be affirmed. -32- MARTIN J. FONCELLO BRIAN R. POULIOT Assistant District Attorneys Of Counsel October 31,2014 Respectfully submitted, CYRUS R. VANCE, JR. District Attorney New York County B; BRIAN R. POULIOT Assistant District Attorney -33-