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

114
KA 14-01509
PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, CURRAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ERIC CLAY, DEFENDANT-APPELLANT.


BRIDGET L. FIELD, ROCHESTER, FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KELLY CHRISTINE WOLFORD
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County (Alex
R. Renzi, J.), rendered July 18, 2014. The judgment convicted
defendant, upon a jury verdict, of criminal possession of a weapon in
the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law, that part of the omnibus motion
seeking preclusion of the identification evidence is granted, and a
new trial is granted on count two of the indictment.

     Memorandum: Defendant appeals from a judgment convicting him
following a jury trial of criminal possession of a weapon in the
second degree (Penal Law § 265.03 [3]), arising from his possession of
a gun located in the left rear seat of a vehicle where he was
allegedly seated. Contrary to defendant’s contention, viewing the
evidence in light of the elements of the crime as charged to the jury
(see People v Danielson, 9 NY3d 342, 349), we conclude that the
verdict is not against the weight of the evidence (see generally
People v Bleakley, 69 NY2d 490, 495). Even assuming, arguendo, that a
different verdict would not have been unreasonable based upon defense
alibi testimony, we note that the jury was entitled to credit the
testimony of the police witness that defendant was the person seated
in the vehicle over that of the defense witnesses who testified that
defendant was either on the sidewalk or inside a nearby house at the
time (see generally Bleakley, 69 NY2d at 495).

     We reject defendant’s further contention that Supreme Court erred
in refusing to suppress the gun. The evidence at the suppression
hearing established that the police were patrolling a high crime area
with a high incidence of gun violence and, while driving at a low rate
of speed, passed a parked vehicle with four occupants. There were
several people standing on the sidewalk by the vehicle and one person
was standing in the street by the vehicle. One officer testified that
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                                                         KA 14-01509

the passenger in the left rear seat of the vehicle made eye contact
with him and then leaned forward as though placing something under the
seat. The officer and his partner then approached the vehicle, and
the officer observed the other rear seat passenger with a bottle of
liquor and a cup of liquid. The officer directed the four occupants
to place their hands where they could be seen and, when the driver
exited the vehicle in order to retrieve his driver’s license, the
front seat passenger exited the vehicle and ran. While the officer
chased that person and the other officer was engaged with the other
rear seat passenger, defendant exited the vehicle and ran. A knife,
determined to be a gravity knife, was observed on the seat where the
other rear seat passenger was seated and, upon his arrest, the vehicle
was searched and two guns were located, one under the front passenger
seat and the other under the left rear seat.

     The officer testified that, because of the high crime rate in the
area and defendant’s movements after defendant made eye contact with
him, he directed the occupants to place their hands where they could
be seen, for officer safety. Although defendant correctly contends
that the officer’s actions constituted a restraint over the occupants,
as opposed to the vehicle, requiring reasonable suspicion that they
posed some danger to the officers (see People v Harrison, 57 NY2d 470,
476), we conclude that the officer had reasonable suspicion to believe
that the group may have posed a risk to officer safety (see People v
Mack, 49 AD3d 1291, 1292, lv denied 10 NY3d 866; cf. People v May, 81
NY2d 725, 727-728; People v Porter, 136 AD3d 1344, 1345). Indeed,
although defendant may have had an innocuous reason for leaning
forward after making eye contact with the officer, we conclude that,
under these circumstances, “the officer had a reasonable basis for
fearing for [the officers’] safety and was not required to await the
glint of steel” (People v Bracy, 91 AD3d 1296, 1298, lv denied 20 NY3d
1060 [internal quotation marks omitted]). Thus, we conclude that the
court properly implicitly determined that the police action in
requiring defendant to place his hands on the headrest in front of him
was “a ‘constitutionally justified intrusion designed to protect the
safety of the officer[s]’ ” (id.).

     We agree with defendant, however, that the court erred in
permitting the officer to identify defendant as the person in the left
rear seat of the vehicle in the absence of a notice pursuant to CPL
710.30 (1) (b). We therefore reverse the judgment and grant that part
of the omnibus motion seeking preclusion of that testimony on the
ground that the People failed to serve a notice pursuant to CPL 710.30
(1) (b). The prosecutor advised the court and defense counsel after
jury selection that the officer would identify defendant as the left
rear passenger. Defendant objected and the court conducted a hearing,
over defendant’s objection, and determined that the officer’s
identification of defendant by means of a single photo approximately
two hours after the incident was merely confirmatory and thus that no
notice was required pursuant to CPL 710.30 (1) (b).

     The exception to the requirement to provide notice pursuant to
CPL 710.30 “carries significant consequences” (People v Boyer, 6 NY3d
427, 431), and the Court of Appeals has “consistently held that police
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                                                         KA 14-01509

identifications do not enjoy any exemption from the statutory notice
and hearing requirements” (id. at 433). Unlike the buy-and-bust
scenario, where the police participant is focused on the face-to-face
contact with defendant with the goal of identifying him or her when he
or she is picked up by a back up unit (see People v Wharton, 74 NY2d
921, 922-923), here, the officer was standing by the vehicle for
approximately three minutes while he was engaged with all of the
occupants of the vehicle. Thus, “we cannot conclude that the
circumstances of [the officer’s] initial viewing were such that, as a
matter of law, the subsequent identification could not have been the
product of undue suggestiveness” (Boyer, 6 NY3d at 433; see People v
Pacquette, 25 NY3d 575, 580). Indeed, “the statute contemplates
‘pretrial resolution of the admissibility of identification
testimony’ ” (Pacquette, 25 NY3d at 579), and “[t]o conclude otherwise
directly contravenes the simple procedure that has been mandated by
the Legislature and would permit the People to avoid their statutory
obligation merely because a police officer’s initial viewing of a
suspect and a subsequent identification might be temporally related”
(Boyer, 6 NY3d at 433).

     We have reviewed defendant’s remaining contentions and conclude
that they are without merit.




Entered:   February 10, 2017                    Frances E. Cafarell
                                                Clerk of the Court
