                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: March 3, 2016                      106873
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v
                                             MEMORANDUM AND ORDER
HENRY SMITH, Also Known as
   POPS,
                    Appellant.
________________________________


Calendar Date:    January 13, 2016

Before:   Peters, P.J., Garry, Egan Jr., Rose and Clark, JJ.

                              __________


     Craig Meyerson, Latham, for appellant.

      P. David Soares, District Attorney, Albany (Vincent Stark
of counsel), for respondent.

                              __________


Egan Jr., J.

      Appeal   from a judgment of the Supreme Court (Breslin, J.),
rendered May   30, 2014 in Albany County, upon a verdict convicting
defendant of   the crime of criminal sale of a controlled substance
in the third   degree.

      In late March 2013 or early April 2013, Tyson Ruecker, a
detective assigned to the Community Response Unit of the Albany
Police Department, was approached by a confidential informant
(hereinafter CI) – with whom Ruecker had worked extensively for
approximately 18 months – and given information regarding a
potential drug "target" known as "Pops." According to the CI,
Pops was selling drugs out of a basement apartment located on
Madison Avenue in the City of Albany. Based upon the information
                              -2-                106873

provided by the CI, which included, among other things, a
physical description of Pops, as well as information derived from
another detective who was familiar with defendant, Ruecker showed
the CI a single photo of defendant and asked the CI if he
recognized the individual depicted therein. In response, the CI
indicated that the person in the photo was "the individual that
he kn[e]w as Pops." The photo identification of defendant
occurred on April 4, 2013. With the CI's assistance, a
controlled buy then was arranged for the afternoon of April 12,
2013, at which time the CI purchased a quantity of a substance
from defendant that field tested positive for crack cocaine.

      Defendant thereafter was indicted and charged with one
count of criminal sale of a controlled substance in the third
degree. Prior to trial, defendant requested a Wade hearing to
challenge the CI's pre-buy identification of him as the
individual known to the CI as Pops. The People opposed
defendant's request for a Wade hearing, arguing that the CI's
identification was merely confirmatory, but consented to a
Rodriguez hearing to establish the CI's familiarity with
defendant. Supreme Court conducted a Rodriguez hearing, at which
Ruecker was the sole witness to appear and testify, and
thereafter concluded that the People had demonstrated, beyond a
reasonable doubt, that the CI's identification of defendant was
merely confirmatory. Accordingly, Supreme Court denied
defendant's motion to suppress the pretrial identification.
Following a jury trial, defendant was convicted as charged and
thereafter was sentenced to eight years in prison followed by
three years of postrelease supervision. This appeal by defendant
ensued.1


    1
        Although defendant initially argued that Supreme Court
erred in refusing to charge criminal possession of a controlled
substance in the seventh degree as a lesser included offense of
criminal sale of a controlled substance in the third degree where
the defense of agency had been submitted to the jury, defendant
conceded in his reply brief that the Court of Appeals considered
and rejected this very argument in People v Davis (14 NY3d 20
[2009]). As defendant acknowledges that Davis is controlling on
this point, no further discussion of this issue is required.
                              -3-                106873

      Initially, we reject defendant's claim that the alleged
lack of specificity in the indictment relative to the time of the
underlying drug transaction deprived him of the ability to
prepare an adequate defense. "The purpose of an indictment is to
provide a defendant with fair notice of the charges against him
or her, and of the manner, time, and place of the conduct
underlying the accusations, so as to enable the defendant to
answer the charges and prepare an adequate defense" (People v
Williams, 132 AD3d 785, 785-786 [2015] [internal quotation marks
and citation omitted]; see People v Morris, 61 NY2d 290, 293
[1984]). Although an indictment must contain, among other
things, "[a] statement in each count that the offense charged
therein was committed on, or on or about, a designated date, or
during a designated period of time" (CPL 200.50 [6]), the statute
itself "does not require [that] the exact date and time" be set
forth (People v Morris, 61 NY2d at 294). Accordingly, when time
is not an essential element of the crime charged, "the indictment
'may allege the time in approximate terms'" (People v
Slingerland, 101 AD3d 1265, 1266 [2012], lv denied 20 NY3d 1104
[2013], quoting People v Watt, 81 NY2d 772, 774 [1993]; see
People v Morris, 61 NY2d at 295). Further, "[a] mistake with
respect to date, time or place is a technical defect rather than
a jurisdictional defect vital to the sufficiency of the
indictment" (People v Dudley, 28 AD3d 1182, 1183 [2006] [internal
quotation marks and citations omitted], lvs denied 7 NY3d 788,
791 [2006]).

      Here, the indictment alleged that the underlying drug
transaction occurred "at approximately 4:16 p.m." on April 12,
2013; the CI testified at trial that he was involved in a
controlled buy operation, which included being searched and
provided with a recording device, beginning at approximately 4:30
p.m. on that date, and Ruecker testified that he believed that
the controlled buy took place "a little after" 6:00 p.m. on that
date. Time is not an essential element of criminal sale of a
controlled substance in the third degree (see Penal Law § 220.39
[1]; People v Slingerland, 101 AD3d at 1266), and we are not
persuaded that the less than two-hour discrepancy at issue
deprived defendant of the opportunity to prepare an adequate
defense (see People v Miller, 226 AD2d 833, 834 [1996], lv denied
88 NY2d 939 [1996]).
                              -4-                106873

      As to the issue of whether Supreme Court erred in denying
defendant's motion to suppress the CI's identification of him
without conducting a Wade hearing, "a Wade hearing is not
required when the witness is so familiar with the defendant that
there is little or no risk that police suggestion could lead to a
misidentification" (People v Casanova, 119 AD3d 976, 980 [2014]
[internal quotation marks, brackets and citations omitted]; see
People v Boyer, 6 NY3d 427, 432 [2006]; People v Rodriguez, 79
NY2d 445, 453 [1992]; People v Hines, 132 AD3d 1385, 1386 [2015],
lv denied ___ NY3d ___ [Jan. 12, 2016]; People v Sanchez, 75 AD3d
911, 912 [2010], lv denied 15 NY3d 895 [2010]). Where, as here,
the People assert that the pretrial identification was merely
confirmatory, the People bear the burden of "prov[ing] the
witness's sufficient familiarity with the defendant at a
Rodriguez hearing" (People v Sanchez, 75 AD3d at 912). "Although
the People are not obligated to call the identifying witness at
[the] Rodriguez hearing" (People v Graham, 283 AD2d 885, 887
[2001], lv denied 96 NY2d 940 [2001]), they nonetheless must come
forward with "sufficient details of the extent and degree of the
protagonists' prior relationship" with one another (id. at 887;
see People v Carter, 57 AD3d 1017, 1018 [2008], lvs denied 12
NY3d 781 [2009]). Relevant factors to be considered in this
regard include "the number of times the witness saw the defendant
prior to the crime, the duration and nature of those encounters,
time periods and setting of the viewings, time between the last
viewing and the crime, and whether the two individuals had any
conversations" (People v Sanchez, 75 AD3d at 912; accord People v
Casanova, 119 AD3d at 980; see People v Coleman, 73 AD3d 1200,
1202 [2010]).

      Here, Ruecker testified that the CI provided him with a
physical description of Pops ("[e]lderly black male, bald,
sometimes wearing glasses, approximately [5 feet 10 inches tall],
[weighing] over 200 [pounds]"), together with a phone number for
Pops and the location of the basement apartment from which Pops
was selling drugs. According to Ruecker, the CI had known Pops
for approximately six weeks prior to bringing Pops to the
attention of law enforcement, during which time the CI had driven
a number of people to meet Pops in order to buy drugs. The CI
informed Ruecker that he was present for some of the actual drug
transactions, which occurred either in the identified basement
                              -5-                  106873

apartment or a nearby parking lot, and that he had interacted
with Pops "several" times during that six-week period. When
pressed as to the precise number of occasions upon which the CI
and Pops met during that time period, Ruecker testified that the
CI drove other people to Pops' location to purchase drugs on
"[a]pproximately four occasions."

      Upon reviewing Ruecker's testimony at the Rodriguez hearing
– specifically with respect to the CI's detailed physical
description of Pops and the number of occasions upon which they
met within the relatively short period of time preceding the
controlled buy – we are satisfied that the People established
that the CI's relationship with defendant was "more than fleeting
or distant" (People v Coleman, 73 AD3d at 1202 [internal
quotation marks and citations omitted]). Accordingly, as the
record supports a finding that the CI's pre-buy identification of
defendant as the individual known to him as Pops was confirmatory
in nature (see People v Colon, 307 AD2d 378, 379-380 [2003], lv
denied 100 NY2d 619 [2003]), we cannot say that Supreme Court
erred in denying defendant's motion to suppress without
conducting a Wade hearing. Defendant's remaining contentions, to
the extent not specifically addressed, have been examined and
found to be lacking in merit.

     Peters, P.J., Garry, Rose and Clark, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
