                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: January 29, 2015                   105537
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

KARLYLE WHEELER,
                    Appellant.
________________________________


Calendar Date:   November 20, 2014

Before:   McCarthy, J.P., Garry, Lynch and Clark, JJ., concur.

                             __________


     Cliff Gordon, Monticello, for appellant.

      D. Holley Carnright, Kingston (Joshua Harris Povill of
counsel), for respondent.

                             __________


McCarthy, J.P.

      Appeal from a judgment of the County Court of Ulster County
(Williams, J.), rendered October 3, 2012, upon a verdict
convicting defendant of the crimes of criminal possession of a
controlled substance in the third degree (two counts) and
criminal sale of a controlled substance in the third degree (two
counts).

      Defendant was indicted on two counts of criminal possession
of a controlled substance in the third degree and two counts of
criminal sale of a controlled substance in the third degree after
he sold cocaine to an undercover police officer on two occasions
on the same date. Following trial, the jury found him guilty of
all counts. County Court sentenced him, as a second felony drug
offender whose prior felony conviction was a violent felony, to
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an aggregate term of 15 years in prison, followed by three years
of postrelease supervision. Defendant appeals.

      County Court did not err in denying defendant's Batson
challenge. Defendant contended that the People were exercising
their peremptory challenges in a discriminatory manner because
they struck the only two remaining black members of the panel,
after one black individual was removed on consent. The People
then offered race-neutral reasons for their challenges. As to
one juror, who was a college student at Harvard, the prosecutor
stated that it was his practice to generally exclude students
from juries. The other excluded individual was a student
studying video game design. The prosecutor stated that this
juror was challenged because he was a student, he wore his hair
in long braids and people with long hair were often viewed as
rebellious, and the prosecutor preferred potential jurors later
in the panel so he challenged several people in a row, including
the black male. The court credited the People's reasons as
nonpretextual, noting that the prosecutor had exercised
peremptory challenges on students in other trials, and five out
of six students in the jury panel were removed that day. A party
may exclude jurors for physical traits such as long hair (see
e.g. Purkett v Elem, 514 US 765, 769 [1995]; People v Richie, 217
AD2d 84, 88 [1995], lv denied 88 NY2d 940 [1996]). The record
also supports the prosecutor's statement about desiring to reach
potential jurors later on the list, as several white jurors
seated next to the black male were also removed through
peremptory challenges. Thus, we will not disturb County Court's
findings accepting the People's reasons as nonpretextual (see
People v Lee, 80 AD3d 877, 879-880 [2011], lvs denied 16 NY3d
832, 833, 834 [2011]; People v Knowles, 79 AD3d 16, 21-22 [2010],
lv denied 16 NY3d 896 [2011]).

      County Court did not err in permitting the undercover
officer to identify defendant at trial. After holding a Wharton
hearing, the court found that the undercover officer's pretrial
identification of defendant was confirmatory and, therefore, not
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unduly suggestive.1 As the Court of Appeals held in People v
Wharton (74 NY2d 921 [1989]), a pretrial identification is merely
confirmatory where an undercover officer observed the defendant
firsthand during a planned drug transaction and made the
identification "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; see People v Roberts, 79 NY2d 964, 966 [1992];
People v Nguyen, 90 AD3d 1330, 1334 [2011], lv denied 18 NY3d 960
[2012]). As in that case, here the undercover officer's
participation in the drug transaction with this particular
individual "was planned, and [the officer] was experienced and
expected to observe carefully the defendant for purposes of later
identification and for completion of his official duties" (People
v Wharton, 74 NY2d at 923; compare People v Allah, 57 AD3d 1115,
1116-1117 [2008], lv denied 12 NY3d 780 [2009]). While this
exception is generally utilized in "buy and bust" situations, the
same reasoning applies to permit a confirmatory identification
that is conducted contemporaneously to the drug transaction
itself, whether the suspect is arrested immediately or not (see
People v Banks, 242 AD2d 726, 727 [1997], lv denied 91 NY2d 868
[1997]). Single photograph identifications are generally
considered suggestive, but they are permitted as confirmatory if
conducted within a short time after an officer's personal
observation of a defendant during a planned drug sale (see People
v Smith, 293 AD2d 764, 765 [2002], lv denied 98 NY2d 713 [2002];
People v Banks, 242 AD2d at 727; People v Miles, 219 AD2d 685,
686-687 [1995], lvs denied 87 NY2d 905 [1995], 88 NY2d 968
[1996]; compare People v Fulton, 223 AD2d 932, 932-933 [1996];
People v Munroe, 185 AD2d 530, 530-532 [1992]).

      Here, the undercover officer testified that he saw
defendant for about one minute during the first drug sale,
outside in daylight at a distance of about four feet. During the
second sale, the officer saw defendant for about 15 seconds, at
the same distance and in the same lighting conditions. The


    1
        At oral argument on appeal, defendant conceded that the
relevant information came out at the Wharton hearing, so that a
separate Wade hearing was unnecessary.
                              -4-                105537

officer was shown a single picture of defendant 10 minutes after
the second sale. Defendant was arrested approximately seven
months after the drug sales. As the identification here was
connected to and contemporaneous with the drug transaction, it
qualified as merely confirmatory, to assure that the police would
arrest the proper person. In any event, the undercover officer's
observation of defendant for more than a minute in broad daylight
at a close distance constituted an independent basis for
permitting his in-court identification of defendant (see People v
Parker, 257 AD2d 693, 694-695 [1999], lvs denied 93 NY2d 1015,
1024 [1999]; People v Brown, 217 AD2d 797, 798 [1995], lv denied
86 NY2d 872 [1995]). While proof of a pretrial identification is
not permitted as part of the People's case-in-chief, here such
evidence was brought out by the defense in an effort to discredit
the officer's identification of defendant.

      Defendant received the effective assistance of counsel. To
prevail on his argument of ineffective assistance, defendant had
to prove that his counsel failed to provide meaningful
representation, including proving that she lacked any strategic
or other legitimate explanations for the alleged errors (see
People v Baker, 14 NY3d 266, 270-271 [2010]). Defendant contends
that his counsel erred by failing to call his brother as a
witness. Despite defendant's testimony that his brother would
testify that he – and not defendant – was present at the time of
the drug sales at issue, the record does not necessarily support
his assertion. Outside the presence of the jury, defendant's
counsel informed County Court that she had talked to the brother
recently, but his story was inconsistent and he had stopped
returning counsel's calls. Defense counsel also felt that the
brother would not testify, but would invoke his Fifth Amendment
right not to incriminate himself. Thus, she had a legitimate
reason for not calling or subpoenaing the brother to testify.

      Defendant also contends that his counsel should have
objected to the admission of the drugs because there was no proof
that the drugs that were tested were the same drugs involved in
the sales. This argument is unpersuasive, and his counsel cannot
be faulted for failing to make an objection that would not have
been successful. Defense counsel could have cross-examined the
police officers and the confidential informant about the search
                              -5-                105537

of the informant prior to the drug transactions, specifically
regarding how the informant was able to buy ice cream if the
officers had verified that she had no money on her. This alleged
shortcoming, however, did not deprive defendant of effective
assistance. The topic was collateral, and all of the testimony
and video established that the confidential informant never
touched the drugs or money involved in the transaction.
Accordingly, defendant's counsel provided him with meaningful
representation.

      County Court did not impermissibly expand its Sandoval
ruling during trial. During cross-examination of defendant, the
court allowed the People to explore additional information and
underlying facts about one of defendant's crimes and another
situation, based on defendant opening the door to such
questioning through his answers on direct examination (see People
v Fardan, 82 NY2d 638, 646 [1993]). The court warned defendant
that the line of questioning would open the door, and defendant
knowingly continued with his testimony on those topics, making it
only fair for the People to rebut any misleading impressions that
defendant created (see People v Heckstall, 45 AD3d 907, 909
[2007], lv denied 10 NY3d 766 [2008]).

      Defendant was not entitled to an adverse inference charge
regarding the lack of audio on a portion of the video recording
of the first drug transaction. An adverse inference charge
informs the jury that it may draw an inference in favor of the
defendant because material evidence is missing, but such a charge
is meant for situations where the evidence has been lost or
destroyed by agents of the government (see People v Handy, 20
NY3d 663, 669-670 [2013]; People v Acevedo, 112 AD3d 985, 987
[2013], lv denied 23 NY3d 1017 [2014]). Here, the missing audio
portion never existed because the officer in charge of the
equipment testified that he mistakenly did not turn on the audio
until the transaction was underway. Under the circumstances,
County Court correctly determined that defendant was not entitled
to an adverse inference charge.

      We have reviewed defendant's remaining contentions and find
them unpersuasive.
                        -6-                  105537

Garry, Lynch and Clark, JJ., concur.



ORDERED that the judgment is affirmed.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
