| People v Smith |
| 2016 NY Slip Op 01521 [137 AD3d 1323] |
| March 3, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vHenry Smith, Also Known as Pops, Appellant. |
Craig Meyerson, Latham, for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the Supreme Court (Breslin, J.), renderedMay 30, 2014 in Albany County, upon a verdict convicting defendant of the crime ofcriminal sale of a controlled substance in the third degree.
In late March 2013 or early April 2013, Tyson Ruecker, a detective assigned to theCommunity Response Unit of the Albany Police Department, was approached by aconfidential informant (hereinafter CI)—with whom Ruecker had workedextensively for approximately 18 months—and given information regarding apotential drug "target" known as "Pops." According to the CI, Pops was selling drugs outof a basement apartment located on Madison Avenue in the City of Albany. Based uponthe information provided by the CI, which included, among other things, a physicaldescription of Pops, as well as information derived from another detective who wasfamiliar with defendant, Ruecker showed the CI a single photo of defendant and askedthe CI if he recognized the individual depicted therein. In response, the CI indicated thatthe person in the photo was "the individual that he kn[e]w as Pops." The photoidentification of defendant occurred on April 4, 2013. With the CI's assistance, acontrolled buy then was arranged for the afternoon of April 12, 2013, at which time theCI purchased a quantity of a substance from defendant that field tested positive for crackcocaine.
Defendant thereafter was indicted and charged with one count of criminal sale of acontrolled substance in the third degree. Prior to trial, defendant requested aWade hearing to [*2]challenge the CI's pre-buyidentification of him as the individual known to the CI as Pops. The People opposeddefendant's request for a Wade hearing, arguing that the CI's identification wasmerely confirmatory, but consented to a Rodriguez hearing to establish the CI'sfamiliarity with defendant. Supreme Court conducted a Rodriguez hearing, atwhich Ruecker was the sole witness to appear and testify, and thereafter concluded thatthe People had demonstrated, beyond a reasonable doubt, that the CI's identification ofdefendant was merely confirmatory. Accordingly, Supreme Court denied defendant'smotion to suppress the pretrial identification. Following a jury trial, defendant wasconvicted as charged and thereafter was sentenced to eight years in prison followed bythree years of postrelease supervision. This appeal by defendant ensued.[FN*]
Initially, we reject defendant's claim that the alleged lack of specificity in theindictment relative to the time of the underlying drug transaction deprived him of theability to prepare an adequate defense. "The purpose of an indictment is to provide adefendant with fair notice of the charges against him or her, and of the manner, time, andplace of the conduct underlying the accusations, so as to enable the defendant to answerthe charges and prepare an adequate defense" (People v Williams, 132 AD3d 785, 785-786 [2015][internal quotation marks and citation omitted]; see People v Morris, 61 NY2d290, 293 [1984]). Although an indictment must contain, among other things, "[a]statement in each count that the offense charged therein was committed on, or on orabout, a designated date, or during a designated period of time" (CPL 200.50 [6]), thestatute itself "does not require [that] the exact date and time" be set forth (People vMorris, 61 NY2d at 294). Accordingly, when time is not an essential element of thecrime charged, "the indictment 'may allege the time in approximate terms' " (People v Slingerland, 101AD3d 1265, 1266 [2012], lv denied 20 NY3d 1104 [2013], quotingPeople v Watt, 81 NY2d 772, 774 [1993]; see People v Morris, 61 NY2dat 295). Further, "[a] mistake with respect to date, time or place is a technical defectrather than a jurisdictional defect vital to the sufficiency of the indictment" (People v Dudley, 28 AD3d1182, 1183 [2006] [internal quotation marks and citations omitted], lvdenied 7 NY3d 788 [2006]).
Here, the indictment alleged that the underlying drug transaction occurred "atapproximately 4:16 p.m." on April 12, 2013; the CI testified at trial that he was involvedin a controlled buy operation, which included being searched and provided with arecording device, beginning at approximately 4:30 p.m. on that date, and Rueckertestified that he believed that the controlled buy took place "a little after" 6:00 p.m. onthat date. Time is not an essential element of criminal sale of a controlled substance inthe third degree (see Penal Law § 220.39 [1]; People vSlingerland, 101 AD3d at 1266), and we are not persuaded that the less thantwo-hour discrepancy at issue deprived defendant of the opportunity to prepare anadequate defense (see People v Miller, 226 AD2d 833, 834 [1996], lvdenied 88 NY2d 939 [1996]).
As to the issue of whether Supreme Court erred in denying defendant's motion tosuppress the CI's identification of him without conducting a Wade hearing, "aWade hearing is [*3]not required when thewitness is so familiar with the defendant that there is little or no risk that policesuggestion could lead to a misidentification" (People v Casanova, 119 AD3d 976, 980 [2014] [internalquotation marks, brackets and citations omitted]; see People v Boyer, 6 NY3d 427, 432 [2006]; People vRodriguez, 79 NY2d 445, 453 [1992]; People v Hines, 132 AD3d 1385, 1386 [2015], lvdenied 26 NY3d 1109 [2016]; People v Sanchez, 75 AD3d 911, 912 [2010], lvdenied 15 NY3d 895 [2010]). Where, as here, the People assert that the pretrialidentification was merely confirmatory, the People bear the burden of "prov[ing] thewitness's sufficient familiarity with the defendant at a Rodriguez hearing"(People v Sanchez, 75 AD3d at 912). "Although the People are not obligated tocall the identifying witness at [the] Rodriguez hearing" (People vGraham, 283 AD2d 885, 887 [2001], lv denied 96 NY2d 940 [2001]), theynonetheless must come forward with "sufficient details of the extent and degree of theprotagonists' prior relationship" with one another (id. at 887; see People v Carter, 57 AD3d1017, 1018 [2008], lv denied 12 NY3d 781 [2009]). Relevant factors to beconsidered in this regard include "the number of times the witness saw the defendantprior to the crime, the duration and nature of those encounters, time periods and settingof the viewings, time between the last viewing and the crime, and whether the twoindividuals had any conversations" (People v Sanchez, 75 AD3d at 912;accord People v Casanova, 119 AD3d at 980; see People v Coleman, 73 AD3d 1200, 1202 [2010]).
Here, Ruecker testified that the CI provided him with a physical description of Pops("[e]lderly black male, bald, sometimes wearing glasses, approximately [5 feet 10 inchestall], [weighing] over 200 [pounds]"), together with a phone number for Pops and thelocation of the basement apartment from which Pops was selling drugs. According toRuecker, the CI had known Pops for approximately six weeks prior to bringing Pops tothe attention of law enforcement, during which time the CI had driven a number ofpeople to meet Pops in order to buy drugs. The CI informed Ruecker that he was presentfor some of the actual drug transactions, which occurred either in the identified basementapartment or a nearby parking lot, and that he had interacted with Pops "several" timesduring that six-week period. When pressed as to the precise number of occasions uponwhich the CI and Pops met during that time period, Ruecker testified that the CI droveother people to Pops' location to purchase drugs on "[a]pproximately fouroccasions."
Upon reviewing Ruecker's testimony at the Rodriguezhearing—specifically with respect to the CI's detailed physical description of Popsand the number of occasions upon which they met within the relatively short period oftime preceding the controlled buy—we are satisfied that the People establishedthat the CI's relationship with defendant was "more than fleeting or distant" (People vColeman, 73 AD3d at 1202 [internal quotation marks and citations omitted]).Accordingly, as the record supports a finding that the CI's pre-buy identification ofdefendant as the individual known to him as Pops was confirmatory in nature (seePeople v Colon, 307 AD2d 378, 379-380 [2003], lv denied 100 NY2d 619[2003]), we cannot say that Supreme Court erred in denying defendant's motion tosuppress without conducting a Wade hearing. Defendant's remaining contentions,to the extent not specifically addressed, have been examined and found to be lacking inmerit.
Peters, P.J., Garry, Rose and Clark, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Although defendantinitially argued that Supreme Court erred in refusing to charge criminal possession of acontrolled substance in the seventh degree as a lesser included offense of criminal sale ofa controlled substance in the third degree where the defense of agency had beensubmitted to the jury, defendant conceded in his reply brief that the Court of Appealsconsidered and rejected this very argument in People v Davis (14 NY3d 20 [2009]). As defendantacknowledges that Davis is controlling on this point, no further discussion of thisissue is required.