        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

170
KA 13-00392
PRESENT: CARNI, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

KEVIN REEVES, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Donald E.
Todd, A.J.), rendered January 11, 2013. The judgment convicted
defendant, upon a jury verdict, of criminal sale of a controlled
substance in the third degree and criminal possession of a controlled
substance in the third degree.

     It is hereby ORDERED that the case is held, the decision is
reserved and the matter is remitted to Onondaga County Court for a
hearing pursuant to CPL 710.60 (4).

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of criminal sale of a controlled substance in the
third degree (Penal Law § 220.39 [1]) and criminal possession of a
controlled substance in the third degree (§ 220.16 [1]). Viewing the
evidence in light of the elements of the crimes as charged to the jury
(see People v Danielson, 9 NY3d 342, 349), we reject defendant’s
contention that the verdict is against the weight of the evidence (see
generally People v Bleakley, 69 NY2d 490, 495).

     We agree with defendant that he was entitled to a pretrial
hearing to test the reliability of the police identification of him as
the seller of cocaine to an undercover police officer during a
transaction that occurred more than a year prior to defendant’s
arrest. Pursuant to a meeting arranged by a confidential informant,
two undercover officers from the Onondaga County Sheriff’s Department
met with defendant on April 25, 2011 to purchase cocaine.
Approximately five minutes prior to the meeting, one of the officers
(hereafter, undercover officer) viewed a photograph allegedly
depicting defendant. After the transaction, the undercover officer
returned to the Sheriff’s Department and reviewed the photograph
again. The incident report completed by the undercover officer the
day after the transaction contained the entry “UNKNOWN” for the
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                                                         KA 13-00392

suspect’s name. In a subsequent, but undated “Narrative Supplement”
report, the undercover officer described the use of the single
photograph to identify defendant before and after the transaction.
Defendant was not arrested until more than a year later, on May 3,
2012, by a police officer from a different police agency (arresting
officer), i.e., the Syracuse Police Department. Importantly, the
arresting officer had not participated in the undercover transaction
and made the arrest solely on the basis of an outstanding warrant. On
the arrest report, in the box reserved for “ID Procedure,” the
arresting officer checked “None.” No postarrest identification
procedures were conducted by the People prior to trial. Unlike the
typical “buy and bust” operation with a postarrest station house
identification, the undercover officer made no effort to “assure
himself that [the Syracuse Police Department] had arrested the man he
intended” (People v Morales, 37 NY2d 262, 271).

     Defendant’s pretrial motion for discovery demanded “[a]ny
photograph . . . purporting to contain the likeness of a human being
shown to [prospective] witnesses.” The People’s response stated “None
known to exist.” The single photograph allegedly used by the
undercover officer to identify defendant has not been produced by the
People.

     Defendant moved to suppress the People’s identification testimony
and, in the alternative, requested a hearing to determine the
admissibility of any such evidence. County Court summarily denied
suppression and defendant’s request for a Wade hearing on the ground
that the identification procedure was “confirmatory.”

     We begin by recognizing that the primary concern with police
identification procedures is that they should provide “assurance that
an innocent person [has not been] detained by reason of a mistaken
arrest” (People v Wharton, 74 NY2d 921, 923). Thus, a contemporaneous
postarrest station house viewing or prompt on the scene confrontation
generally provides such assurance (see id. at 922-923). Here,
following the drug transaction, the undercover officer did not observe
defendant again until the trial, which was approximately a year and a
half after the transaction. That lapse of time is in stark contrast
to the typical situation where an undercover officer identifies the
arrestee at the police station contemporaneously with the drug
transaction (see e.g. People v Irving, 162 AD2d 280, 280-281, lv
denied 76 NY2d 940).

     While we recognize that a “Wade hearing” is often linked, nearly
exclusively, with the concept of “suggestiveness,” we conclude that a
defendant is entitled to CPL 710.30 (1) (b) notice and the opportunity
to move to suppress identification testimony pursuant to CPL 710.60 in
order to test the reliability of such testimony (see People v Mato, 83
NY2d 406, 410). While “suggestiveness” may play an important role in
the reliability analysis, it is not the exclusive criterion. The list
of criteria involved in making a reliability determination may
include, but is not limited to: the lapse of time between the
criminal transaction and the arrest, the opportunity to observe the
suspect during the transaction, the duration of the interaction, and
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                                                         KA 13-00392

the facts and circumstances of the interaction with the suspect. It
is well settled that “the mere labelling of an identification as
‘confirmatory’ will not obviate the need for Wade hearings.
Case-by-case analyses of the facts and circumstances in each case
remains necessary” (id. at 410-411). “Comprehensive analysis, not
superficial categorization, ultimately governs” (People v Gordon, 76
NY2d 595, 601).

     Under the circumstances presented here, we conclude that the
identification of defendant in this case cannot be said to have the
same assurances of reliability that were found to exist in Wharton
that would justify the summary denial of a hearing pursuant to CPL
710.60 (see People v Newball, 76 NY2d 587, 592). We therefore hold
the case, reserve decision, and remit the matter to County Court for a
hearing pursuant to CPL 710.60 (4) to test the reliability of the
People’s identification testimony.

     All concur except LINDLEY, J., who concurs in the result in the
following memorandum: Although I concur in the result reached by the
majority, I respectfully disagree in part with its rationale. I agree
with the majority that County Court erred in summarily denying
defendant’s motion to suppress the undercover officer’s
identification. As the Court of Appeals has made clear (see People v
Boyer, 6 NY3d 427, 431-432), there are only two types of confirmatory
identifications that dispense with the need for a Wade hearing: (1)
where the witness knows the defendant so well he or she is impervious
to suggestiveness by the police (see People v Rodriguez, 79 NY2d 445,
453); and (2) where an undercover officer who participates in a buy-
and-bust operation identifies the suspect shortly after the purchase
to ensure that “an innocent person was not being detained by reason of
a mistaken arrest” (People v Wharton, 74 NY2d 921, 923). Here, the
undercover officer did not know defendant prior to the transaction,
and his identification of defendant therefore cannot be deemed
confirmatory under Rodriguez. Moreover, because the undercover
officer was not involved in defendant’s arrest, his prior
identification of defendant was not confirmatory under Wharton. As
the majority aptly notes, “[u]nlike the typical ‘buy and bust’
operation with a postarrest station house identification, the
undercover officer made no effort to ‘assure himself that [the
Syracuse Police Department] had arrested the man he intended’ (People
v Morales, 37 NY2d 262, 271).” It thus follows that the court erred
in determining that the identification was confirmatory as a matter of
law, and a Wade hearing should be conducted.

     I respectfully disagree with the majority, however, that
defendant is entitled to a Wade hearing in order “to test the
reliability” of the undercover officer’s identification. “The
accuracy of an eyewitness identification presents an issue of fact for
jury resolution and may not be determined on a motion to suppress”
(People v Dukes, 97 AD2d 445, 445 [emphasis added]; see People v Ross,
288 AD2d 138, 138, lv denied 98 NY2d 655). In my view, there is no
basis to suppress identification testimony in the absence of evidence
that the identification is tainted by unduly suggestive police
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                                                         KA 13-00392

procedures, and concerns about the reliability of an
identification—apart from alleged improper suggestiveness—go to the
weight of the evidence, not its admissibility (see People v Gilmore,
135 AD2d 828, 828, lv denied 71 NY2d 896). Thus, a suppression court
is not required to make “a threshold inquiry into the reliability of .
. . identification testimony” (People v Reeves, 120 AD2d 621, 622, lv
denied 69 NY2d 715).

     Indeed, there are many cases where a witness’s identification of
a defendant may be of questionable reliability, such as where the
witness was under the influence of drugs or alcohol when he or she
made the identification, where the witness has an extensive criminal
record and has proven to be less than trustworthy, or where a witness
has poor eyesight or a faulty memory. Would we suppress the
identification testimony of those witnesses in the absence of evidence
that they were influenced by unduly suggestive police procedures? I
do not think that we would or should. As noted, the rule excluding
improper pretrial identifications is “designed to reduce the risk that
the wrong person will be convicted as a result of suggestive
identification procedures employed by the police” (People v Adams, 53
NY2d 241, 251 [emphasis added]), not to ensure that trial witnesses
give accurate identification testimony.

     The majority cites People v Mato (83 NY2d 406, 410) for the
proposition that a defendant is entitled to a suppression hearing to
test the reliability of an undercover officer’s identification.
Although the Court of Appeals in Mato referred generally to concerns
about the “reliability” of the undercover officer’s identifications of
the defendant in that case, the Court made clear that it was concerned
about the “suggestiveness” of the showup identifications, which
occurred while the defendant was in handcuffs standing in front of the
building where the drug transaction took place and then again at the
police station after defendant was arrested. I do not read Mato as
permitting a defendant to make a pretrial motion to challenge the
reliability of an identification on grounds other than undue
suggestiveness. Indeed, such a rule would appear to be inconsistent
with People v Marte (12 NY3d 583, cert denied 559 US 941), where a
unanimous Court of Appeals clarified that suppression is warranted
only when an identification is tainted by suggestive procedures used
by the police (see id. at 586-590). “Where no one in law enforcement
is the source of the problem [relating to a possible
misidentification],” the Court explained, there is no basis to
suppress identification testimony, and concerns about reliability of
an identification are for the trier of fact to consider (id. at 589).




Entered:   June 10, 2016                        Frances E. Cafarell
                                                Clerk of the Court
