| People v Coleman |
| 2017 NY Slip Op 07638 [155 AD3d 1097] |
| November 2, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Isa A. Coleman, Also Known as Shaw,Appellant. |
Craig Meyerson, Latham, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Timothy G. Blatchley of counsel), forrespondent.
Pritzker, J. Appeals (1) from a judgment of the County Court of Clinton County (McGill, J.),rendered January 7, 2015, upon a verdict convicting defendant of the crimes of criminal sale of acontrolled substance in the third degree and criminal possession of a controlled substance in thethird degree, and (2) by permission, from an order of said court, entered May 28, 2015, whichdenied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, withouta hearing.
Defendant was convicted following a jury trial of one count of criminal sale of a controlledsubstance in the third degree and one count of criminal possession of a controlled substance inthe third degree in connection with a controlled buy of heroin. He was sentenced as a secondfelony offender to an aggregate prison term of nine years, followed by two years of postreleasesupervision. Defendant unsuccessfully moved, pro se, pursuant to CPL 440.10 to vacate thejudgment of conviction. Defendant appeals from the judgment of conviction and, by permission,from the denial of his CPL article 440 motion.
Initially, we find no reason to disturb County Court's denial of defendant's motion to vacatethe conviction pursuant to CPL 440.10 based upon the inaccurate testimony of the investigatingofficer before the grand jury. The investigating officer testified before the grand jury, and later atthe Wade hearing, that he listened to the controlled buy in real time via transmittercarried by the confidential informant (hereinafter CI). At trial, however, the officer explained thathe misspoke when he testified before the grand jury that he listened to the transaction "in livetime." He testified that he gave the CI only a recorder, rather than a transmitter, because thetransmitter could not be discreetly attached to the CI's clothing, and he explained that he failed toreview his notes very well prior to appearing before the grand jury and did not discover his erroruntil he was preparing for trial. As the officer's inaccurate testimony was clearly placed on therecord before County Court and was apparent during the trial, the issue "could have been raisedupon direct appeal, thus foreclosing CPL article 440 relief" (People v Hillriegel, 78 AD3d 1381, 1382 [2010]; see People vAngelakos, 70 NY2d 670, 672-673 [1987]; People v Monteiro, 149 AD3d 1155,1156 [2017]; People v DePerno, 148AD3d 1463, 1464 [2017], lv denied 29 NY3d 1030 [2017]).
To the extent that defendant is appealing the denial of his motion to dismiss the indictmentpursuant to CPL 210.20 (1) (c), there is no evidence that the People deliberately elicited falsetestimony (see People v Smith, 145AD3d 1628, 1631 [2016]; People v Klosin, 281 AD2d 951, 951 [2001], lvdenied 96 NY2d 864 [2001]). Even absent the officer's erroneous testimony, the remainingadmissible proof before the grand jury was sufficient, as it included two consistent accounts ofthe controlled buy and the CI's identification of defendant (see People v Acevedo, 118 AD3d 1103, 1105-1106 [2014], lvdenied 26 NY3d 925 [2015]).
Defendant also appeals County Court's ruling at the Wade hearing, in which the courtproperly declined to suppress the CI's identification of defendant. At the Wade hearing,the investigating officer was the sole witness and testified that the CI had purchased narcoticsfrom defendant prior to the controlled buy. The officer also testified that the CI had roughly oneminute of face-to-face contact with defendant during the buy. After the buy, the CI gave adescription of defendant, as well as described a tattoo that she observed on defendant's neck thatread, "Do or die." After hearing this description, the officer presented the CI with defendant'smugshot, and she identified defendant as the person from whom she had just purchased drugs.The single-photograph identification procedure was not unduly suggestive and therefore did notviolate due process as it was confirmatory in nature (see People v Adio, 111 AD3d 757, 758 [2013], lv denied 23NY3d 1033 [2014]; People vConcepcion, 68 AD3d 404, 405 [2009], lv denied 14 NY3d 770 [2010];People v Montgomery, 213 AD2d 563, 564 [1995], affd 88 NY2d 926[1996]).
Defendant also argues that County Court erred in denying his CPL 330.30 motion to set asidethe verdict in light of County Court's reliance on the officer's inaccurate testimony during theWade hearing. As defendant failed to move to reopen the Wade hearing after theofficer initially disclosed the inaccuracies in earlier testimony, this claim is unpreserved(see CPL 470.05 [2]; People vMorris, 140 AD3d 1472, 1472-1473 [2016], lv denied 28 NY3d 1074 [2016]). Inany event, defendant effectively cross-examined the officer about his incorrect testimony, and thetestimony about overhearing that transaction in real time was not so crucial to County Court'ssuppression ruling, particularly in light of the additional evidence, as to command reversal (see People v McClendon, 92 AD3d959, 960 [2012], lv denied 19 NY3d 865 [2012]).
McCarthy, J.P., Egan Jr., Lynch and Devine, JJ., concur. Ordered that the judgment and orderare affirmed.