In Newball, the defendant objected to the testimony of an undercover officer claiming that the officer had made a previous identification of defendant and the People did not serve a CPL 710.30 notice.Summary of this case from People v. Dixon
Argued September 7, 1990
Decided October 23, 1990
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, William J. Garry, J.
Andrew E. Abraham and Philip L. Weinstein for appellant.
Charles J. Hynes, District Attorney (Monique Ferrell and Jay M. Cohen of counsel), for respondent.
Defendant, who was convicted primarily upon the testimony of two undercover narcotics officers, contends that the identification testimony of one of the officers should have been precluded since the People did not serve a CPL 710.30 notice with regard to that testimony even though the officer had "previously identified" defendant within the meaning of CPL 710.30. We agree. Because that officer's prior identification of defendant was police-arranged, and was not within the category of confirmatory identifications recently described by this Court as being of a kind not "ordinarily burdened or compromised by forbidden suggestiveness" (People v Wharton, 74 N.Y.2d 921, 922), 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.
On October 21, 1986, two undercover officers, "Officer John Smith" and "Officer Jane Doe," were assigned to investigate the reported sale of controlled substances at a number of locations in the 77th Precinct in Brooklyn. Pursuant to this assignment, Officer Smith approached and attempted to purchase "crack" cocaine from a man present at one of these locations. Officer Doe, who was waiting nearby in an unmarked car, observed Officer Smith and the man from approximately 50 to 75 feet away. Upon completion of the sale, Officer Smith radioed a description of the seller to his backup unit so that they could make the arrest. However, by the time the backup unit arrived, the subject had left and could not thereafter be found.
For the protection of the identities of the undercover officers involved we have used fictitious names.
On November 18, 1986, while Officer Smith was involved in another "buy and bust" operation, he fortuitously spotted the "lost subject" from the October 21st sale. Since he was still acting undercover, Officer Smith did not attempt to make the arrest himself. Instead he radioed his backup unit, to which Officer Doe had been assigned, and gave them the subject's description and location. Upon arriving at the location, Officer Doe identified defendant to the rest of the backup unit as the person she had seen with Officer Smith on October 21. Defendant was subsequently arrested.
Prior to trial, defendant was not served with a CPL 710.30 notice pertaining to Officer Doe's previous identification of him. Nonetheless, at trial, Officer Doe was permitted to identify defendant as the person she had seen during the October 21st "buy and bust" operation, and as the person she had identified 28 days later at the time of his arrest. On the basis of this testimony, as well as the testimony of Officer Smith, defendant was convicted of criminal sale of a controlled substance in the third degree.
On defendant's appeal, the Appellate Division rejected his arguments that CPL 710.30 had been violated. Relying on People v Gissendanner ( 48 N.Y.2d 543) and People v Wharton ( 74 N.Y.2d 921, supra), the court held that "[u]nder the circumstances of this case, [Officer Doe's] identification testimony did not fall within the intendment of the statute." ( 158 A.D.2d, at 554.) Since the Appellate Division erred in that conclusion, we now reverse.
Contrary to the People's assertions, the error claimed here is preserved for our review. Defense counsel's contention, prior to trial, that the District Attorney's voluntary disclosure form should have disclosed Officer Doe's November 18th identification of defendant, sufficiently alerted the trial court that defendant was claiming a lack of CPL 710.30 notice.
At the outset, it should be stressed that the actions taken by the undercover officers here are not in issue. Nor could they be, for their conduct was clearly proper, and indeed commendable. The problem here lies not in regard to what the police did, but solely concerns the People's failure to serve a timely CPL 710.30 notice.
CPL 710.30 requires that, within 15 days of arraignment, the People serve upon the defendant notice of their intention to introduce at trial "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, to be given by a witness who has previously identified him as such." If notice is not given, the People must be precluded from introducing such evidence at trial, unless they are permitted to serve a late notice for "good cause shown" (CPL 710.30), or the defendant, "despite the lack of such notice, [has] moved to suppress such evidence and such motion has been denied and the evidence thereby rendered admissible as prescribed in [CPL 710.70]" (CPL 710.30).
CPL 710.30 constitutes a legislative attempt to deal effectively with the reality that not all police-arranged identifications are free from unconstitutional taint (see, People v Collins 60 N.Y.2d 214, 219). 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.; see, People v White, 73 N.Y.2d 468, 474; Bellacosa, Practice Commentary, McKinney's Cons Laws of NY, Book 11A, CPL 710.30, at 113-114).
The People, in an attempt to justify their failure to comply with CPL 710.30 in this case, argue that Officer Doe's November 18th identification of defendant did not constitute a previous identification within the intendment of the statute since, in their view, it was not the result of a "police-arranged" identification procedure, but was essentially the product of a mere chance meeting on the street. We disagree. Officer Doe did not encounter defendant by mere happenstance on November 18. She was specifically pointed to his location by Officer Smith. We can see no reason to distinguish such an identification from other State-prompted identification procedures, such as street showups made at the behest of the police. Both, unlike identifications resulting from spontaneous and unplanned encounters, come about at the deliberate direction of the State; thus, each must be said to implicate the due process concerns underlying CPL 710.30.
Further, the People's reliance on our decision in Gissendanner ( 48 N.Y.2d 543, supra) is misplaced. Contrary to their assertions, that case does not stand for the general proposition that an identification made by a police officer during the course of an arrest is always exempt from the notice requirements of CPL 710.30. Gissendanner instead established that CPL 710.30 is not applicable in situations where "the defendant's identity is not in issue, or * * * the protagonists are known to one another" ( 48 N.Y.2d, at 552, supra). Officer Doe's acquaintance with defendant by virtue of her alleged viewing of him on October 21, however, cannot be said to have made defendant "known to" her as contemplated in Gissendanner. As we observed in People v Collins ( 60 N.Y.2d 214, 219, supra): "[Knowledge], of course, is necessarily a question of degree. When a crime has been committed by a family member, former friend or long-time acquaintance of a witness there is little or no risk [of taint through police suggestion]. * * * But in cases where the prior relationship is fleeting or distant it would be unrealistic to ignore the possibility that police suggestion may improperly influence the witness in making an identification." Officer Doe's relationship with the person she viewed on October 21 cannot be said to be other than distant and fleeting, since she observed the person for only a few minutes and from a distance of no closer than 50 feet. Thus, her prior "knowledge" of the suspect does not excuse the People's failure to give CPL 710.30 notice.
Nor does Officer Doe's November 18th identification of defendant fall within the category of confirmatory identifications recently described by this Court as being of a kind not "ordinarily burdened or compromised by forbidden suggestiveness" (People v Wharton, 74 N.Y.2d, at 922, supra). In Wharton, we held that a Wade hearing was not required where an undercover officer, five minutes after purchasing drugs in a "buy and bust" operation, drove by the site to view the seller — who was by then being detained by the backup unit — and, three hours later, identified the seller at the precinct. We reasoned that under such circumstances, "[t]he viewing by [the] 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," and so, unlike a station house showup identification by a civilian witness, "was not of a kind ordinarily burdened or compromised by forbidden suggestiveness" (id., at 922-923, supra). Significantly, however, this Court also cautioned that "[w]here the nature and circumstances of the encounter and identification may warrant, a hearing should * * * be held." (Id., at 923.)
This case is clearly within this latter category. First, Officer Doe's identification of defendant cannot be said to have constituted the "completion of an integral police procedure," since it lacked any continuity with her initial viewing of defendant on October 21. Even more important, however, is the passage of some four weeks between the initial viewing and the later identification. Because of this significant lapse of time, Officer Doe's identification of defendant cannot be said to have the same assurances of reliability that were found to exist in Wharton (cf., People v Rubio, 133 A.D.2d 474). Consequently, this case presents precisely the type of special circumstances which call for a CPL 710.60 (4) hearing and therefore implicate the notice requirements of CPL 710.30. Since no such notice was given and no hearing was held, it was error to admit Officer Doe's identification testimony into evidence.
Finally, contrary to the People's assertions, the evidence of defendant's guilt was not so overwhelming as to render this error harmless (see, People v Crimmins, 36 N.Y.2d 230, 241). Once Officer Doe's testimony is excluded, the People's case against defendant is left to depend almost entirely on the testimony of Officer Smith. That testimony, however, was based upon an identification which occurred 28 days after Officer Smith encountered the drug suspect. In light of the possible effects this passage of nearly a month's time may have had on the jury's assessment of the reliability of Officer Smith's testimony, it cannot be said with any degree of certainty that had Officer Doe's testimony, which tended to significantly bolster the testimony of Officer Smith, been excluded, the outcome would not have been different (see, id., at 241-242).
Accordingly, the order of the Appellate Division should be reversed, the motion to suppress identification testimony granted, and a new trial ordered.
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER and HANCOCK, JR., concur with Judge TITONE; Judge BELLACOSA dissents and votes to affirm in a separate opinion.
Order reversed, etc.
Under the facts as portrayed in the majority opinion, I would decide the case differently. The conviction should be upheld because the analysis and applied rule punishes proper police work in the identification and apprehension of a criminal encountered fortuitously by the police on the street.
It appears that an undercover police officer received a radio call from another officer who spotted defendant; the former was thus simply summoned to the street location, one block away, where defendant was being kept under surveillance. Upon arrival, the summoned officer identified the "lost suspect" and defendant was arrested by a backup team of officers.
The majority agree that commendable ordinary-course-of-business identification action by the police on the street was carried out, leading to the arrest of the right person. Yet, the police conduct is characterized as "police-arranged" and "deliberately directed". I do not believe this conduct qualifies for slotting as "other State-prompted identification procedures, such as street showups made at the behest of the police." (Majority opn, at 591.) Indeed, the key legal question on which we therefore differ is that I think the lower courts were correct in concluding that preclusion under CPL 710.30 (1) (b) is unwarranted, because this type of street identification by the police "does not come into play" within the intendment of the statute (People v Gissendanner, 48 N.Y.2d 543, 552). In that threshold procedural respect, this case is significantly different from People v Gordon ( 76 N.Y.2d 595, 599 [decided today]).
Two related precedential lines support affirmance of the determinations below in this case (see, People v Morales, 37 N.Y.2d 262, 272; People v Gissendanner, 48 N.Y.2d 543, supra). As in Morales, the officers here were performing expert and customary undercover drug enforcement duties on the street and, as in the Gissendanner sense, defendant here was already sufficiently known to the identifying officer to exempt the situation from the statutory notice and preclusion sanction. Thus, while I agree completely that this is not a confirmatory identification case within the framework of People v Wharton ( 74 N.Y.2d 921), I also note that it is not a station house showup under People v Riley and People v Rodriguez ( 70 N.Y.2d 523) and People v Gordon ( 76 N.Y.2d 595, supra).
The case for me may be reduced to the simple syllogism of police officers doing precisely what their job demands in the particular situation, with no attendant violation of defendant's statutory or decisional law rights, and therefore with no justifiable basis for disturbing fair and correct determinations by the lower courts.