| People v Smith |
| 2014 NY Slip Op 08268 [122 AD3d 1162] |
| November 26, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vRahsaan K. Smith, Appellant. |
Linda B. Johnson, West Sand Lake, for appellant.
Gerald F. Mollen, District Attorney, Binghamton (Joshua S. Shapiro of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered July 2, 2012, convicting defendant upon his plea of guilty of the crime ofcriminal possession of a forged instrument in the second degree.
In July 2011, defendant was indicted on five counts of criminal possession of acontrolled substance in the third degree and five counts of criminal possession of aforged instrument in the second degree stemming from defendant's alleged use of forgedprescriptions to obtain oxycodone at three different pharmacies in Broome County.Defendant thereafter pleaded guilty to one count of criminal possession of a forgedinstrument in the second degree in full satisfaction of the indictment and was sentencedas a second felony offender to a prison term of 2 to 4 years. Defendant now appealsarguing that County Court erred as a matter of law in denying his motion to suppress hisidentification as the perpetrator of the alleged crimes on the ground that the pretrialidentification procedure used by police, a photo array, was unduly suggestive. Upon ourreview of the photo array and suppression testimony, we affirm.
Initially, a pretrial identification that is unduly suggestive violates due process and istherefore inadmissible against the defendant (see People v Chipp, 75 NY2d 327,335 [1990], cert denied 498 US 833 [1990]). In this regard, a photo array isunduly suggestive if it "depicts a unique characteristic which draws the viewer's attentionso as to indicate that the police have selected a particular individual" (People vParker, 257 AD2d 693, 694 [1999], lv denied 93 [*2]NY2d 1024 [1999]; see People v Muniz, 93 AD3d 871, 872-873 [2012], lvdenied 19 NY3d 965 [2012]; People v Colon, 24 AD3d 1114, 1115 [2005], lvdenied 6 NY3d 811 [2006]). "While the People have the initial burden of goingforward to establish the reasonableness of the police conduct and the lack of any unduesuggestiveness in a pretrial identification procedure, it is the defendant who bears theultimate burden of proving that the procedure was unduly suggestive" (People vChipp, 75 NY2d at 335 [citation omitted]). Where suggestiveness is shown, it is thePeople's burden to demonstrate the existence of an independent source by clear andconvincing evidence (see People v Adams, 53 NY2d 241, 251 [1981]; People v Bianca, 91 AD3d1127, 1128 [2012], lv denied 19 NY3d 862 [2012]).
Finding that the People met their initial burden to establish that the police conductwas reasonable and their procedure was not unduly suggestive, we turn to defendant'sultimate burden. Here, Tricia Ceurter, Michael Perhach and Daniel Smith, threeemployees of the pharmacies that received the forged prescriptions, were each separatelyshown a photo array approximately one week following defendant's attempt to fill suchprescriptions. The array depicts six individuals of equivalent age and ethnicity who arereasonably similar in appearance. However, we nonetheless find the array to be undulysuggestive to the extent that defendant's photo draws the viewer's immediate attention.Specifically, while the other five photos depict individuals from the shoulders up withthe upper portion of their photos consisting of nothing more than a blank, graybackground, defendant is shown from the chest up with the top of his head reaching tothe very top of the photo. Thus, defendant's face occupies the space that, in all of theother photos, is bare. In our view, this difference cannot be deemed minor andimpermissibly "create[d] a substantial likelihood that the defendant would be singled outfor identification" (People v Chipp, 75 NY2d at 336; compare People v Matthews,101 AD3d 1363, 1364-1365 [2012], lv denied 20 NY3d 1101 [2013];People v Bianca, 91 AD3d at 1128; People v Lawal, 73 AD3d 1287, 1287-1288 [2010];People v Brown, 169 AD2d 934, 935 [1991], lv denied 77 NY2d 958[1991]). Thus, County Court improperly held that the photo array was not undulysuggestive.
However, we are not persuaded that County Court improperly ruled that witnessesCeuter and Perhach had an independent source for their identifications of defendant.Specifically, the record before us demonstrates that the People met their burden ofestablishing, by clear and convincing evidence, that the identifications by Ceuter andPerhach were based on their observations of and interactions with defendant rather thanthe erroneous police procedure (see United States v Wade, 388 US 218, 239-240[1967]).[FN*]Notably, Ceuter testified that she was able to observe defendant as he attempted to fill theforged prescription and provided her with his Medicaid card, bearing his name andphotograph. Suspicious of the authenticity of the prescription, Ceuter undertook to verifywith the prescribing physician and notified the police. Likewise, Perhach interacted withdefendant on at least two occasions when defendant attempted to fill prescriptions andprovided Perhach with his driver's license. Similarly, Perhach contacted police due to hissuspicions of defendant. Accordingly, the record before us supports admission of theidentifications of defendant by Ceuter and Perhach (see People v Hall, 57 AD3d 1222, 1224-1225 [2008], lvdenied 12 NY3d 817 [2009]; People v Richardson, 9 AD3d 783, 786-787[*3][2004], lv denied 3 NY3d 680 [2004]; People vJones, 301 AD2d 678, 679-680 [2003], lv denied 99 NY2d 616 [2003];People v Morgan, 259 AD2d 771, 772 [1999], lv denied 93 NY2d 975[1999]).
Lahtinen, J.P., Stein, McCarthy and Rose, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:The same cannot be saidfor the identification of defendant by Smith, as we find that his testimony wasinsufficient to satisfy the People's burden. County Court's error in this regard does notrequire reversal, however, because defendant pleaded guilty to the count of theindictment that was based upon his conduct in passing a forged prescription to Ceuter.