| People v Clay |
| 2017 NY Slip Op 01074 [147 AD3d 1499] |
| February 10, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Eric Clay, Appellant. |
Bridget L. Field, Rochester, for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Kelly Christine Wolford of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Alex R. Renzi, J.), renderedJuly 18, 2014. The judgment convicted defendant, upon a jury verdict, of criminal possession ofa weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the law,that part of the omnibus motion seeking preclusion of the identification evidence is granted, anda new trial is granted on count two of the indictment.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial ofcriminal possession of a weapon in the second degree (Penal Law § 265.03 [3]),arising from his possession of a gun located in the left rear seat of a vehicle where he wasallegedly seated. Contrary to defendant's contention, viewing the evidence in light of theelements of the crime as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we concludethat the verdict is not against the weight of the evidence (see generally People v Bleakley,69 NY2d 490, 495 [1987]). Even assuming, arguendo, that a different verdict would not havebeen unreasonable based upon defense alibi testimony, we note that the jury was entitled to creditthe testimony of the police witness that defendant was the person seated in the vehicle over thatof the defense witnesses who testified that defendant was either on the sidewalk or inside anearby house at the time (see generally Bleakley, 69 NY2d at 495).
We reject defendant's further contention that Supreme Court erred in refusing to suppress thegun. The evidence at the suppression hearing established that the police were patrolling a highcrime area with a high incidence of gun violence and, while driving at a low rate of speed, passeda parked vehicle with four occupants. There were several people standing on the sidewalk by thevehicle and one person was standing in the street by the vehicle. One officer testified that thepassenger in the left rear seat of the vehicle made eye contact with him and then leaned forwardas though placing something under the seat. The officer and his partner then approached thevehicle, and the officer observed the other rear seat passenger with a bottle of liquor and a cup ofliquid. The officer directed the four occupants to place their hands where they could be seen and,when the driver exited the vehicle in order to retrieve his driver's license, the front seat passengerexited the vehicle and ran. While the officer chased that person and the other officer was engagedwith the other rear seat passenger, defendant exited the vehicle and ran. A knife, determined to bea gravity knife, was observed on the seat where the other rear seat passenger was seated and,upon his arrest, the vehicle was searched and two guns were located, one under the frontpassenger seat and the other under the left rear seat.
The officer testified that, because of the high crime rate in the area and defendant'smovements after defendant made eye contact with him, he directed the occupants to place theirhands where they could be seen, for officer safety. Although defendant correctly contends thatthe officer's actions constituted a restraint over the occupants, as opposed to the vehicle,requiring reasonable suspicion that they posed some danger to the officers (see People vHarrison, 57 NY2d 470, 476 [1982]), we conclude that the officer had reasonable suspicionto believe that the group may have posed a risk to officer safety (see People v Mack, 49 AD3d1291, 1292 [2008], lv denied 10 NY3d 866 [2008]; cf. People v May, 81NY2d 725, 727-728 [1992]; People vPorter, 136 AD3d 1344, 1345 [2016]). Indeed, although defendant may have had aninnocuous reason for leaning forward after making eye contact with the officer, we conclude that,under these circumstances, "the officer had a reasonable basis for fearing for [the officers'] safetyand was not required to await the glint of steel" (People v Bracy, 91 AD3d 1296, 1298 [2012], lv denied 20NY3d 1060 [2013] [internal quotation marks omitted]). Thus, we conclude that the courtproperly implicitly determined that the police action in requiring defendant to place his hands onthe headrest in front of him was "a 'constitutionally justified intrusion designed to protect thesafety of the officer[s]' " (id.).
We agree with defendant, however, that the court erred in permitting the officer to identifydefendant as the person in the left rear seat of the vehicle in the absence of a notice pursuant toCPL 710.30 (1) (b). We therefore reverse the judgment and grant that part of the omnibus motionseeking preclusion of that testimony on the ground that the People failed to serve a noticepursuant to CPL 710.30 (1) (b). The prosecutor advised the court and defense counsel after juryselection that the officer would identify defendant as the left rear passenger. Defendant objectedand the court conducted a hearing, over defendant's objection, and determined that the officer'sidentification of defendant by means of a single photo approximately two hours after the incidentwas merely confirmatory and thus that no notice was required pursuant to CPL 710.30 (1)(b).
The exception to the requirement to provide notice pursuant to CPL 710.30 "carriessignificant consequences" (People vBoyer, 6 NY3d 427, 431 [2006]), and the Court of Appeals has "consistently held thatpolice identifications do not enjoy any exemption from the statutory notice and hearingrequirements" (id. at 433). Unlike the buy-and-bust scenario, where the police participantis focused on the face-to-face contact with defendant with the goal of identifying him or herwhen he or she is picked up by a back up unit (see People v Wharton, 74 NY2d 921,922-923 [1989]), here, the officer was standing by the vehicle for approximately three minuteswhile he was engaged with all of the occupants of the vehicle. Thus, "we cannot conclude thatthe circumstances of [the officer's] initial viewing were such that, as a matter of law, thesubsequent identification could not have been the product of undue suggestiveness"(Boyer, 6 NY3d at 433; seePeople v Pacquette, 25 NY3d 575, 580 [2015]). Indeed, "the statute contemplates'pretrial resolution of the admissibility of identification testimony' "(Pacquette, 25 NY3d at 579), and "[t]o conclude otherwise directly contravenes thesimple procedure that has been mandated by the Legislature and would permit the People toavoid their statutory obligation merely because a police officer's initial viewing of a suspect and asubsequent identification might be temporally related" (Boyer, 6 NY3d at 433).
We have reviewed defendant's remaining contentions and conclude that they are withoutmerit. Present—Whalen, P.J., Smith, DeJoseph, Curran and Scudder, JJ.