| People v Nolasco |
| 2010 NY Slip Op 01515 [70 AD3d 972] |
| February 16, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Francisco Nolasco, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Thomas M. Rossof counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Heffernan,Jr., J.), rendered December 20, 2007, convicting him of robbery in the first degree, upon a juryverdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
On September 12, 2006, two men, one of whom displayed a handgun, robbed Jorge Morales(hereinafter Jorge) and his brother, Jose Morales (hereinafter Jose), on a residential street, andthen fled the area. The next day at the local police precinct house, after viewing numerousphotographs on a "photo manager computer," each brother separately picked out a photograph ofthe defendant, and indicated that he was one of the robbers. Eight days later, the defendant wasapprehended and brought to the precinct house, and Jorge picked the defendant out of twolineups arranged by the police. The People timely served notice pursuant to CPL 710.30 (1) (b)that they intended to present identification testimony from Jorge, but no such notice was servedregarding any intent to produce identification testimony from Jose. The lineup identificationswere suppressed after a pretrial Wade hearing (see United States v Wade, 388US 218 [1967]) but, after conducting an independent source hearing, the hearing court ruled thatJorge could make an in-court identification of the defendant.
At trial, after Jorge testified and made his in-court identification, the People called Jose as awitness, and indicated that they intended to elicit an in-court identification from him as well. Thedefendant moved to preclude Jose's in-court identification, arguing that Jose should not bepermitted to make an in-court identification because of the lack of notice pursuant to CPL 710.30(1) (b), and because his in-court identification would have been tainted by the fact that aphotograph of the defendant was on display when he entered the courtroom as a witness. ThePeople suggested that, in the alternative, an independent source hearing should be conducted todetermine whether the photograph on display in the courtroom would have influenced Jose'sidentification, and the defendant informed the trial court that an independent source hearingwould be "better than nothing." The trial court denied the defendant's motion to preclude Jose'sin-court identification based on the Court of Appeals' decision in People v Grajales (8NY3d 861 [2007]), concluding that Grajales "announced [the] law in this state to be thatno notice of [*2]photographic identification is required." After anindependent source hearing was conducted, Jose was permitted to make an in-court identificationof the defendant. The jury ultimately found that the defendant was guilty of robbery in the firstdegree, after it reported that it was deadlocked and the trial court delivered an Allencharge (see Allen v United States, 164 US 492 [1896]).
The Supreme Court should have granted the defendant's motion to preclude Jose frommaking an in-court identification. Whenever the People intend to offer identification testimonyfrom a witness who has "identifie[d] a defendant out of court, CPL 710.30 requires that. . . they must serve upon the defendant a notice of their intention to use [the]identification testimony" (People v McMullin, 70 NY2d 855, 856 [1987]; see Peoplev Smothers, 20 Misc 3d 654, 659-660 [2008]). Contrary to the People's contention, the Courtof Appeals' decision in People v Grajales (8 NY3d 861 [2007]) does not excuse theirfailure to provide such notice. In Grajales, the People provided timely notice pursuant toCPL 710.30 (1) (b) that they intended to offer identification testimony from a complainant whohad previously made a point-out identification, but the notice failed to mention a pretrialphotographic identification made by the same complainant (id. at 862). The Court inGrajales held that since the People could not have intended to offer the inadmissiblephotographic identification at trial, the notice pursuant to CPL 710.30 (1) (b) omitting thatinformation was not inadequate for failing to specify this identification (id.). Here, nostatutory notice whatsoever was given by the People as to their intent to offer "testimonyregarding an observation of the defendant. . . at the time or place of the commissionof the offense" to be given by Jose, "a witness who has previously identified him as such" (CPL710.30 [1] [b]; see People v Smothers, 20 Misc 3d at 658-659). Furthermore, andcontrary to the People's contention, inasmuch as the only motion made by the defendant thatcould be deemed a motion to suppress Jose's identification testimony was based on an incident inthe courtroom during trial that was wholly unrelated to any pretrial identification, this case doesnot fall under the exception to the preclusion rule set forth in CPL 710.30 (3) (cf. People vKirkland, 89 NY2d 903, 904-905 [1996]). Accordingly, the denial of the defendant's motionto preclude Jose's in-court identification deprived him of a fair trial.
The defendant was also deprived of a fair trial when the trial court, over defense counsel'sobjection, permitted police officers to testify as to facts that permitted the jury to infer that thetwo brothers identified the defendant on the same day as that on which they reported the incidentto the police, and that Jorge identified the defendant at the precinct house on the date of thedefendant's arrest (see People v Milligan, 309 AD2d 950, 950-951 [2003]). Thistestimony constituted impermissible bolstering (see People v Howard, 87 NY2d 940, 942[1996]; People v Trott, 46 AD3d 713, 714 [2007]; People v Eyre, 138 AD2d397, 398 [1988]). In addition, the admission of evidence that permitted the jury to infer thatJorge identified the defendant on the day of his arrest violated the hearing court's determinationsuppressing Jorge's lineup identifications of the defendant (see People v Trott, 46 AD3dat 714).
Contrary to the People's contentions, these errors were not harmless, since the only evidenceconnecting the defendant to the crime was the in-court identifications (id.; see Peoplev Eyre, 138 AD2d at 398). Accordingly, a new trial is required (see People vCrimmins, 36 NY2d 230, 241 [1975]).
In light of the foregoing determination, we need not reach the defendant's remainingcontentions. Skelos, J.P., Balkin, Leventhal and Lott, JJ., concur.