| People v Shepard |
| 2009 NY Slip Op 08051 [67 AD3d 446] |
| November 10, 2009 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v FelixShepard, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (John B.F. Martin of counsel), forrespondent.
Judgment, Supreme Court, New York County (Arlene R. Silverman, J.), rendered May 23,2007, convicting defendant, after a nonjury trial, of criminal sale of a controlled substance in thethird degree and criminal possession of a controlled substance in the third degree, and sentencinghim, as a second felony offender, to concurrent terms of six years, unanimously affirmed.
Defendant argues that the trial court confused suppression and preclusion issues and thatonce the court suppressed the physical evidence on the ground that the police lacked probablecause to arrest defendant, it should also have suppressed the confirmatory identification as thefruit of an unlawful arrest (see People v Gethers, 86 NY2d 159 [1995]). Instead, the trialcourt ordered a hearing pursuant to People v Wharton (74 NY2d 921 [1989]) todetermine the undercover's whereabouts and whether the identification was confirmatory andcould be admitted without notice under CPL 710.30.
Even assuming, without deciding, that the trial court's probable cause ruling is notreviewable on this appeal by defendant (see CPL 470.15 [1]; People vLaFontaine, 92 NY2d 470, 473-474 [1998]), the facts before us differ from those inGethers. Here, the identifying witness testified at the pretrial Wharton hearing asto facts relevant to an independent source determination, allowing this Court to make its ownfinding based upon that testimony (seePeople v Wilson, 5 NY3d 778, 780 [2005]; People v Dodt, 61 NY2d 408, 417[1984]; People v Allah, 57 AD3d1115, 1117 [2008], lv denied 12 NY3d 780 [2009]).
The undercover testified that he saw a black man wearing a camouflage baseball cap andgreen sweatshirt and a black woman wearing a black jacket and blue scarf make a narcotics saleto another black man in a black jacket and blue jeans. He first observed the pair on the northeastcorner of MacDougal and West 3rd Streets, then repositioned himself at the northwest corner,looking directly across from them. The undercover continued to move from corner to corner toblend in and get a better view of the pair inside a pizzeria. He then observed what he believed tobe a narcotics transaction and made a transmission to that effect to the backup team. When thebuyer left, the undercover remained in the vicinity of defendant and his companion, continuingto [*2]observe them. He could see the pair clearly through thepizzeria's window and did not lose sight of them from the time he first observed them to the timethey were detained, except for brief periods when a car or pedestrian went by and blocked hisview. After the detention, the undercover radioed that the arresting officer had detained the rightpeople.
This testimony constituted clear and convincing evidence demonstrating that theundercover's observations before and during the alleged sale provided an independent source forhis in-court identification of defendant at trial (see People v Allah, 57 AD3d at 1118; People v Schiffer, 13 AD3d 719,720 [2004]).
We reject defendant's claim that the verdict was against the weight of the evidence (see People v Danielson, 9 NY3d342, 348-349 [2007]). Concur—Gonzalez, P.J., Andrias, Catterson, Acosta andAbdus-Salaam, JJ.