| People v Allah |
| 2008 NY Slip Op 09669 [57 AD3d 1115] |
| December 11, 2008 |
| Appellate Division, Third Department |
| mThe People of the State of New York, Respondent, v Armel Allah,Appellant. |
—[*1] Richard J. McNally Jr., District Attorney, Troy (Kelly L. Egan of counsel), forrespondent.
Spain, J. Appeal from a judgment of the County Court of Rensselaer County (Jacon, J.), renderedApril 13, 2007, upon a verdict convicting defendant of the crimes of criminal possession of a weapon inthe third degree and criminal possession of stolen property in the fourth degree.
Shortly after midnight on May 24, 2006, Frank Mastan, a police officer with the Housing Authorityof the City of Troy, Rensselaer County, observed a black Lincoln Navigator drive in and out of anapartment complex at an excessive speed, and he made a traffic stop. Mastan exited his patrol vehicleand approached, observing the male driver exit the vehicle. The driver ignored Mastan's directive to getback into the vehicle, they looked directly at each other and then the driver fled on foot. A stolensemiautomatic handgun was discovered protruding from under the driver's seat, and a debit card andother items bearing defendant's name and address were found in the vehicle. Mastan went to the City ofTroy Police Department within three hours, where a printout of defendant's license was obtained. Heidentified defendant as the driver of the Navigator from a single color photograph on a computer screenof an Internet site that had been searched using defendant's name and birth date. The Navigator hadbeen purchased earlier that month by defendant's sister and her friend, and defendant had driven it on adaily basis. Defendant was arrested about one month later.[*2]
Defendant was charged with criminal possession of a weaponin the third degree and criminal possession of stolen property in the fourth degree. Following aWade hearing at which Mastan was the sole witness, County Court denied defendant's motionto suppress Mastan's in-court identification, finding that it was a confirmatory identification that had notbeen unduly suggestive. A jury convicted defendant as charged, rejecting his alibi and mistakenidentification defenses, and he was sentenced as a second felony offender to an aggregate prison termof four years, with five years of postrelease supervision.
Initially, viewing the evidence in a light most favorable to the People, we find that the evidence waslegally sufficient to sustain both convictions (see People v Bleakley, 69 NY2d 490, 495[1987]). Defendant's operation of the Navigator in which a loaded, operable semiautomatic pistol wassticking out from beneath the driver's seat established his possession under the statutory presumption(see Penal Law § 265.02 [former (4)]; § 265.15 [3]), as well as his knowingpossession of a stolen firearm, as charged (see Penal Law § 165.45 [4]; §165.55 [1]; see also People v Cintron, 95 NY2d 329, 332-333 [2000]; People v Ashley, 45 AD3d 987, 989[2007], lv denied 10 NY3d 761 [2008]). Further reviewing the evidence in a neutral light, anddeferring to the jury's determinations of credibility among contradictory witness accounts, we do notfind that the verdict was, in any respect, against the weight of the evidence (see People v Watkins, 49 AD3d 908,908-909 [2008], lv denied 10 NY3d 965 [2008]).
We do agree with defendant's claim that County Court erred in finding that Mastan's identificationof him from a computer picture was "confirmatory." There are only two recognized kinds ofconfirmatory identifications which, if applicable, permit summary denial of a Wade hearing anddispense with the People's obligation to provide notice because, as a matter of law, the identificationcould not have been the product of undue suggestiveness (see People v Boyer, 6 NY3d 427, 431 [2006]; People vMunroe, 185 AD2d 530, 531 [1992]). The first, where the identifying witness knew defendantwell (see People v Boyer, 6 NY3d at 431-432; People v Rodriguez, 79 NY2d 445,453 [1992]), is inapplicable as Mastan did not previously know defendant. The second kind is limitedto those identifications made by undercover police officers who participate in planned buy-and-bustoperations after a face-to-face purchase, to confirm that backup officers apprehended the right suspect(see People v Boyer, 6 NY3d at 432; People v Mato, 83 NY2d 406, 410 [1994];People v Gordon, 76 NY2d 595, 600-601 [1990]; People v Wharton, 74 NY2d921, 922-923 [1989]).
Here, while Mastan is an experienced trained police officer,[FN*]he was engaged in an unplanned routine traffic stop of a speeding vehicle, not a face-to-facebuy-and-bust transaction in which he was placed at the scene to make an identification as contemplatedby People v Wharton (supra) and its progeny. Further, defendant was not arresteduntil a month later and, thus, Mastan's identification of him from the photograph did not "occur[ ] at aplace and time sufficiently connected and contemporaneous to the arrest itself as to constitute theordinary and proper completion of an integral police procedure" (People v Wharton, 74 NY2dat 922-923; see People v Thompson, 306 AD2d 758, 759-760 [2003], lv denied 1NY3d 581 [2003]). Significantly, confirmatory identifications are "limited to the [two foregoing]scenarios . . . where there is no risk of misidentification" (People v Boyer, 6NY3d at 431-432), and there is no "general 'trained officer exception' " (People v Gordon, 76NY2d at 601). Thus, Mastan's [*3]identification did not qualify asconfirmatory (see e.g. People v Boyer, 6 NY3d at 433; People v Gordon, 76 NY2dat 600-601; People v Pittman, 31 AD3d469, 470 [2006]; People v Thompson, 306 AD2d at 759-760; People vMunroe, 185 AD2d at 531-532; cf. People v Wharton, 74 NY2d at 922-923).
However, even if Mastan's viewing of a single photograph was impermissibly suggestive,suppression of his in-court identification of defendant was not required if it had an independent sourceuntainted by that identification procedure (see People v Perez, 74 NY2d 637, 638 [1989]; People v Schiffer, 13 AD3d 719, 720[2004]). Although defendant raised that claim at the hearing (cf. People v Williams, 85 NY2d868, 869 [1995]), County Court made no finding on independent source. Where, as here, theidentifying witness testified at the Wade hearing and addressed factors relevant to anindependent source determination, this Court may make its own finding based upon the suppressiontestimony (see People v Dodt, 61 NY2d 408, 417 [1984]; cf. People v Gethers, 86NY2d 159, 163 [1995]; People v Riley, 70 NY2d 523, 531-532 [1987]; People vJames, 67 NY2d 662, 664 [1986]).
Mastan testified at the Wade hearing that he approached the Navigator from behind onfoot and observed the driver get out of his vehicle and turn, throw something into his vehicle and drop atowel; they looked directly at each other and Mastan remained focused on the driver the entire time, ata close distance, with the patrol car headlights and spotlight directed at the driver and the vehicle.Considering all of the relevant factors, including Mastan's status as a trained observer (see People vGethers, 86 NY2d at 163), we find that his suppression hearing testimony constituted clear andconvincing evidence demonstrating that his observations during the traffic stop, while brief, provided anindependent source for his in-court identification of defendant at trial (see People v Schiffer, 13AD3d at 720; see also People v Williams, 85 NY2d at 869; People v Perez, 74NY2d at 638, affg 139 AD2d 460 [1988]).
Further, while Mastan should not have been permitted to testify at trial on the People's direct casethat he had identified defendant from the photograph within hours after the traffic stop, reversal is notrequired. Such testimony regarding pretrial out-of-court photographic identification, of course,constitutes improper bolstering of trial testimony and is prohibited, except where defendant opens thedoor (see People v Lindsay, 42 NY2d 9, 12 [1977]; People v Rivera, 31 AD3d 1060, 1061 [2006], lv denied 7NY3d 869 [2006]; People v Mosley, 296 AD2d 595, 596 [2002]). While defense counseldid not object to this testimony, defendant contends that this failure amounted to ineffective assistanceof counsel and, thus, we will address the bolstering issue (see People v Mosley, 296 AD2d at595-596; see also CPL 470.15 [3] [c]). Defense counsel opened the door by preemptivelyraising this issue during voir dire (see People v Massie, 2 NY3d 179, 182-184 [2004]; People v Heckstall, 45 AD3d 907, 909[2007], lv denied 10 NY3d 766 [2008]; People v Rivera, 31 AD3d at 1061; cf.People v Seit, 86 NY2d 92, 95-96 [1995]; People v Hawes, 298 AD2d 706, 708[2002], lv denied 99 NY2d 582 [2003]; People v Mosley, 296 AD2d at 596), andwe do not find that he lacked a strategic or legitimate reason for doing so (see People vBenevento, 91 NY2d 708, 712-713 [1998]). While the prosecution should not, in itscase-in-chief, have been permitted to bolster Mastan's testimony before his credibility was directlychallenged on cross-examination, which it was, we find that any error was harmless (see People vCrimmins, 36 NY2d 230, 241-242 [1975]). Defendant's remaining claims lack merit.
Cardona, P.J., Carpinello, Malone Jr. and Stein, JJ., concur. Ordered, that the judgment isaffirmed.
Footnote *: Mastan testified that he is also aRensselaer County Deputy Sheriff.