| People v Gambale |
| 2017 NY Slip Op 03658 [150 AD3d 1667] |
| May 5, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Joseph J.Gambale, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Drew R. Dubrin of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Daniel Gross of counsel), for respondent.
Appeal from a judgment of the Monroe County Court (Douglas A. Randall, A.J.), renderedSeptember 6, 2013. The judgment convicted defendant, upon a jury verdict, of robbery in the firstdegree.
It is hereby ordered that the case is held, the decision is reserved and the matter is remitted toMonroe County Court for further proceedings in accordance with the following memorandum:Defendant appeals from a judgment convicting him upon a jury verdict of robbery in the firstdegree (Penal Law § 160.15 [4]). Defendant contends that County Court shouldhave suppressed a parole officer's identification of him as the person committing the robberydepicted in a surveillance video on the basis that the police-staged procedure was undulysuggestive. The evidence at the suppression hearing established that, as part of his investigationinto an armed robbery of a hotel that was captured on surveillance video, a police investigatorcalled a parole officer and inquired about her role as a parole officer for defendant and herfamiliarity with him. Upon confirming that the parole officer was familiar with defendant, theinvestigator proceeded to ask her to report to the police department in order to view the video andto determine if she recognized anyone depicted therein. The parole officer identified defendant asthe person committing the robbery. The court denied defendant's motion to suppress, ruling thatthe procedure was not unduly suggestive. That ruling was error.
Preliminarily, neither defendant's general objection to undue suggestiveness in that part of hisomnibus motion seeking suppression of the identification nor his arguments to the hearing courtwere sufficient to preserve for our review his contention that the identification procedure wasunduly suggestive as a result of the investigator's conversation with the parole officer. Defendant"failed to raise that specific contention either as part of his omnibus motion . . . or atthe Wade hearing" (People vMorman, 145 AD3d 1435, 1435-1436 [2016]). We note, however, that the court madefactual findings regarding the investigator's pre-identification conversation with the paroleofficer, and drew a legal conclusion that, based upon the totality of the circumstances, theprocedure was not inherently suggestive because there was no influence or suggestion by theinvestigator and the procedure was not otherwise tainted. We therefore conclude that the court"expressly decided the question raised on appeal," thereby preserving defendant's specificcontention for our review (CPL 470.05 [2]; see People v Prado, 4 NY3d 725, 726 [2004], rearg denied4 NY3d 795 [2005]; People vDavis, 69 AD3d 647, 648-649 [2010]; cf. People v Graham, 25 NY3d 994, 997 [2015]; Morman,145 AD3d at 1435-1436).
With respect to the merits, it is well settled that "a pretrial identification procedure that isunduly suggestive violates a defendant's due process rights and is not admissible" (People v Marshall, 26 NY3d 495,503 [2015] [internal quotation marks omitted]; see People v Chipp, 75 NY2d 327, 335[1990], cert denied 498 US 833 [1990]). " '[T]here is nothing inherentlysuggestive' in showing a witness a surveillance video depicting the defendant and otherindividuals, provided that the 'defendant was not singled-out, portrayed unfavorably, or in anyother manner prejudiced by police conduct or comment or by the setting in which [the defendant]was taped' " (People vDavis, 115 AD3d 1167, 1169 [2014], lv denied 23 NY3d 1019 [2014], quotingPeople v Edmonson, 75 NY2d 672, 676-677 [1990], rearg denied 76 NY2d 846[1990], cert denied 498 US 1001 [1990]). As the Court of Appeals has explained,however, when the police employ an identification procedure whereby a noneyewitness isconfronted with a recording for the purpose of determining whether the noneyewitness is able toidentify the perpetrator as a person with whom he or she is familiar, "[t]he only apparent riskwith such a witness [is] that the police might suggest that the voice [or person depicted] on therecording [is] that of a particular acquaintance" (People v Collins, 60 NY2d 214, 220[1983]).
Here, we agree with defendant that, contrary to the court's determination that "[t]here was noinfluence or suggestion" by the investigator, the evidence establishes that the investigatorsuggested to the parole officer prior to her identification that the person depicted committing therobbery on the surveillance video was defendant (cf. Collins, 60 NY2d at 220,affg 84 AD2d 35, 39-40 [1981]). Instead of requesting the parole officer's assistance inidentifying someone from the video without preemptively disclosing the subject of hisinvestigation, the investigator engaged in a conversation "about her being a parole officer for[defendant]." During the conversation, the investigator "asked [the parole officer] if she wasfamiliar with [defendant]." The parole officer responded that she had "lots of contact" withdefendant, so the investigator proceeded to ask her to "come down and view a video." Theinvestigator subsequently met with the parole officer at the police department and asked her toview the video to determine if she recognized anyone, and the parole officer identified defendantas the person committing the robbery. We conclude that the investigator, by contacting the paroleofficer and inquiring about her familiarity with defendant prior to the parole officer's viewing ofthe video, engaged in the type of undue suggestiveness identified in Collins inasmuch ashis comments improperly suggested to the parole officer that the person she was about to viewwas a particular acquaintance of hers, i.e., defendant (see id. at 220).
Contrary to the People's contention, we conclude that the investigator "singled out" defendantinasmuch as he asked the parole officer about her familiarity with defendant only and, uponreceiving an affirmative response, then asked her to view the video. The People's contention thatthe investigator's comments were not unduly suggestive because there were other people depictedin the video whom the parole officer could have identified, e.g., guests leaving and entering thehotel, and hotel clerks and managers, is without merit inasmuch as there is only one perpetratordepicted committing an armed robbery (cf. Davis, 115 AD3d at 1167, 1169). We rejectthe People's further contention that the error may be deemed harmless. Even assuming, arguendo,that the evidence was overwhelming, it cannot be said that there is no reasonable possibility thatthe parole officer's identification of defendant as the perpetrator of the robbery in thevideo—the only such identification of defendant at trial given the inability of the hotelstaff to identify him—might have contributed to the jury's verdict convicting defendant(see generally People v Crimmins, 36 NY2d 230, 237 [1975]).
The People nonetheless contend, consistent with the alternative ground that they asserted inopposition to the motion, that the court properly refused to suppress the parole officer'sidentification inasmuch as it was merely confirmatory. In its suppression ruling, however, thecourt focused exclusively on whether the procedure was unduly suggestive, and failed to rule onthe "separate and analytically distinct" issue whether the identification was confirmatory (People v Garrett, 23 NY3d 878,885 n 2 [2014], rearg denied 25 NY3d 1215 [2015]; see generally People vBolden, 197 AD2d 528, 529 [1993], lv denied 82 NY2d 922 [1994]), i.e., whether,"as a matter of law, the [parole officer was] so familiar with . . . defendant that there[was] 'little or no risk' that police suggestion could lead to a misidentification" (People vRodriguez, 79 NY2d 445, 450 [1992]). "CPL 470.15 (1) precludes [this Court] fromreviewing an issue that was either decided in an appellant's favor or was not decided by the trialcourt" (People v Ingram, 18 NY3d948, 949 [2012]; see People v LaFontaine, 92 NY2d 470, 473-474 [1998], reargdenied 93 NY2d 849 [1999]; Peoplev Rainey, 110 AD3d 1464, 1466 [2013]). We therefore hold the case, reserve decision,and remit the matter to County Court to rule upon that issue based on the evidence presented atthe suppression hearing. Present—Peradotto, J.P., Carni, Lindley, Troutman and Scudder,JJ.