| People v Carter |
| 2008 NY Slip Op 09494 [57 AD3d 1017] |
| December 4, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Kenneth Carter,Also Known as BK, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), forrespondent.
Rose, J. Appeal from a judgment of the Supreme Court (Lamont, J.), rendered November 17,2006 in Albany County, upon a verdict convicting defendant of the crime of criminal sale of a controlledsubstance in the third degree.
Following a confidential informant's controlled and monitored buy of crack cocaine from a personshe knew as "BK," defendant was arrested and indicted for the crime of criminal sale of a controlledsubstance in the third degree. When he moved for a Wade hearing based on the informant'sidentification of him from a single photo array, County Court held a Rodriguez hearing. Giventhe testimony at that hearing, the court concluded that the informant's identification was confirmatory innature and, thus, a Wade hearing was unnecessary. Later, at the jury trial, the informantidentified defendant in court and independent evidence connected him to the vehicle observed at thescene. The jury found defendant guilty and County Court sentenced him, as a second felony offender,to a prison term of seven years with three years of postrelease supervision.
Initially, we cannot agree with defendant that County Court erred in permitting the confidentialinformant to identify him at trial. A Wade hearing is not required when the witness [*2]is so familiar with the defendant "that there is 'little or no risk' that policesuggestion could lead to a misidentification" (People v Rodriguez, 79 NY2d 445, 450 [1992];see People v Dixon, 85 NY2d 218, 224 [1995]; People v Coleman, 306 AD2d 549,550 [2003]). To demonstrate that suggestiveness is not a concern, the People bear the burden ofproving the witness's familiarity with the defendant at a Rodriguez hearing (see People vRodriguez, 79 NY2d at 452). Here, a police officer testified that the confidential informant, whohad worked with him for three or four months prior to the controlled buy, had told him that the personshe knew as BK lived in her area and that she had seen BK at least three or four times per week over aperiod of one year. The officer also testified that the person known to the informant as BK was, in fact,defendant. This uncontroverted evidence established a prior relationship that was more extensive than afew brief encounters and showed that the informant was sufficiently well-acquainted with defendant tomake a misidentification unlikely (see People v Graham, 283 AD2d 885, 887-888 [2001],lv denied 96 NY2d 940 [2001]). Thus, the evidence at the Rodriguez hearingsufficiently established the informant's familiarity with defendant and no Wade hearing wasnecessary.
Defendant also argues that the verdict was against the weight of the evidence because theconfidential informant was the only one who identified him as the seller and her testimony was notreliable. While it is true that the informant's testimony varied in some respects from her earlierstatements, she was subjected to cross-examination and those issues were fully explored at trial for thejury's consideration. In addition, her testimony was corroborated by the testimony of the detectivesmonitoring the buy and other independent evidence identifying defendant as the person who rented thecar observed at the scene. Giving deference to the jury's determination to accept the informant'stestimony as credible, we cannot say that the verdict was against the weight of the evidence (see People v Romero, 7 NY3d 633,644 [2006]; People v Thaddies, 50AD3d 1249, 1250 [2008], lv denied 10 NY3d 965 [2008]; People v Odom, 36 AD3d 1027, 1029[2007]).
We have considered defendant's remaining contentions and find them to be unavailing.
Mercure, J.P., Spain, Kane and Stein, JJ., concur. Ordered that the judgment is affirmed.