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

541
KA 14-00722
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, TROUTMAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JOSEPH J. GAMBALE, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Douglas A.
Randall, A.J.), rendered September 6, 2013. The judgment convicted
defendant, upon a jury verdict, of robbery in the first degree.

     It is hereby ORDERED that the case is held, the decision is
reserved and the matter is remitted to Monroe County Court for further
proceedings in accordance with the following memorandum: Defendant
appeals from a judgment convicting him upon a jury verdict of robbery
in the first degree (Penal Law § 160.15 [4]). Defendant contends that
County Court should have suppressed a parole officer’s identification
of him as the person committing the robbery depicted in a surveillance
video on the basis that the police-staged procedure was unduly
suggestive. The evidence at the suppression hearing established that,
as part of his investigation into an armed robbery of a hotel that was
captured on surveillance video, a police investigator called a parole
officer and inquired about her role as a parole officer for defendant
and her familiarity with him. Upon confirming that the parole officer
was familiar with defendant, the investigator proceeded to ask her to
report to the police department in order to view the video and to
determine if she recognized anyone depicted therein. The parole
officer identified defendant as the person committing the robbery.
The court denied defendant’s motion to suppress, ruling that the
procedure was not unduly suggestive. That ruling was error.

     Preliminarily, neither defendant’s general objection to undue
suggestiveness in that part of his omnibus motion seeking suppression
of the identification nor his arguments to the hearing court were
sufficient to preserve for our review his contention that the
identification procedure was unduly suggestive as a result of the
investigator’s conversation with the parole officer. Defendant
“failed to raise that specific contention either as part of his
omnibus motion . . . or at the Wade hearing” (People v Morman, 145
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                                                         KA 14-00722

AD3d 1435, 1435-1436). We note, however, that the court made factual
findings regarding the investigator’s pre-identification conversation
with the parole officer, and drew a legal conclusion that, based upon
the totality of the circumstances, the procedure was not inherently
suggestive because there was no influence or suggestion by the
investigator and the procedure was not otherwise tainted. We
therefore conclude that the court “expressly decided the question
raised on appeal,” thereby preserving defendant’s specific contention
for our review (CPL 470.05 [2]; see People v Prado, 4 NY3d 725, 726,
rearg denied 4 NY3d 795; People v Davis, 69 AD3d 647, 648-649; cf.
People v Graham, 25 NY3d 994, 997; Morman, 145 AD3d at 1435-1436).

     With respect to the merits, it is well settled that “a pretrial
identification procedure that is unduly suggestive violates a
defendant’s due process rights and is not admissible” (People v
Marshall, 26 NY3d 495, 503 [internal quotation marks omitted]; see
People v Chipp, 75 NY2d 327, 335, cert denied 498 US 833). “ ‘[T]here
is nothing inherently suggestive’ in showing a witness a surveillance
video depicting the defendant and other individuals, provided that the
‘defendant was not singled-out, portrayed unfavorably, or in any other
manner prejudiced by police conduct or comment or by the setting in
which [the defendant] was taped’ ” (People v Davis, 115 AD3d 1167,
1169, lv denied 23 NY3d 1019, quoting People v Edmonson, 75 NY2d 672,
676-677, rearg denied 76 NY2d 846, cert denied 498 US 1001). As the
Court of Appeals has explained, however, when the police employ an
identification procedure whereby a noneyewitness is confronted with a
recording for the purpose of determining whether the noneyewitness is
able to identify the perpetrator as a person with whom he or she is
familiar, “[t]he only apparent risk with such a witness [is] that the
police might suggest that the voice [or person depicted] on the
recording [is] that of a particular acquaintance” (People v Collins,
60 NY2d 214, 220).

     Here, we agree with defendant that, contrary to the court’s
determination that “[t]here was no influence or suggestion” by the
investigator, the evidence establishes that the investigator suggested
to the parole officer prior to her identification that the person
depicted committing the robbery on the surveillance video was
defendant (cf. Collins, 60 NY2d at 220, affg 84 AD2d 35, 39-40).
Instead of requesting the parole officer’s assistance in identifying
someone from the video without preemptively disclosing the subject of
his investigation, the investigator engaged in a conversation “about
her being a parole officer for [defendant].” During the conversation,
the investigator “asked [the parole officer] if she was familiar with
[defendant].” The parole officer responded that she had “lots of
contact” with defendant, so the investigator proceeded to ask her to
“come down and view a video.” The investigator subsequently met with
the parole officer at the police department and asked her to view the
video to determine if she recognized anyone, and the parole officer
identified defendant as the person committing the robbery. We
conclude that the investigator, by contacting the parole officer and
inquiring about her familiarity with defendant prior to the parole
officer’s viewing of the video, engaged in the type of undue
suggestiveness identified in Collins inasmuch as his comments
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                                                         KA 14-00722

improperly suggested to the parole officer that the person she was
about to view was a particular acquaintance of hers, i.e., defendant
(see id. at 220).

     Contrary to the People’s contention, we conclude that the
investigator “singled out” defendant inasmuch as he asked the parole
officer about her familiarity with defendant only and, upon receiving
an affirmative response, then asked her to view the video. The
People’s contention that the investigator’s comments were not unduly
suggestive because there were other people depicted in the video whom
the parole officer could have identified, e.g., guests leaving and
entering the hotel, and hotel clerks and managers, is without merit
inasmuch as there is only one perpetrator depicted committing an armed
robbery (cf. Davis, 115 AD3d at 1167, 1169). We reject the People’s
further contention that the error may be deemed harmless. Even
assuming, arguendo, that the evidence was overwhelming, it cannot be
said that there is no reasonable possibility that the parole officer’s
identification of defendant as the perpetrator of the robbery in the
video—the only such identification of defendant at trial given the
inability of the hotel staff to identify him—might have contributed to
the jury’s verdict convicting defendant (see generally People v
Crimmins, 36 NY2d 230, 237).

     The People nonetheless contend, consistent with the alternative
ground that they asserted in opposition to the motion, that the court
properly refused to suppress the parole officer’s identification
inasmuch as it was merely confirmatory. In its suppression ruling,
however, the court focused exclusively on whether the procedure was
unduly suggestive, and failed to rule on the “separate and
analytically distinct” issue whether the identification was
confirmatory (People v Garrett, 23 NY3d 878, 885 n 2, rearg denied 25
NY3d 1215; see generally People v Bolden, 197 AD2d 528, 529, lv denied
82 NY2d 922), i.e., whether, “as a matter of law, the [parole officer
was] so familiar with . . . defendant that there [was] ‘little or no
risk’ that police suggestion could lead to a misidentification”
(People v Rodriguez, 79 NY2d 445, 450). “CPL 470.15 (1) precludes
[this Court] from reviewing an issue that was either decided in an
appellant’s favor or was not decided by the trial court” (People v
Ingram, 18 NY3d 948, 949; see People v LaFontaine, 92 NY2d 470, 473-
474, rearg denied 93 NY2d 849; People v Rainey, 110 AD3d 1464, 1466).
We therefore hold the case, reserve decision, and remit the matter to
County Court to rule upon that issue based on the evidence presented
at the suppression hearing.




Entered:   May 5, 2017                          Frances E. Cafarell
                                                Clerk of the Court
