| People v Morris |
| 2018 NY Slip Op 07200 [165 AD3d 1489] |
| October 25, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Tyron E. Morris, Appellant. |
Rural Law Center of New York, Castleton (Cynthia Feathers of counsel), for appellant, andappellant pro se.
John M. Muehl, District Attorney, Cooperstown (Michael F. Getman of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Otsego County (Lambert, J.),rendered August 3, 2015, convicting defendant following a nonjury trial of the crime of criminalsale of a controlled substance in the third degree.
Defendant was arrested for criminal sale of a controlled substance in the third degreestemming from allegations that he sold heroin to a confidential informant (hereinafter CI).County Court denied defendant's motion to preclude identification testimony, finding that theCI's identification of defendant from a photograph was confirmatory in nature. Following anonjury trial, the court found defendant guilty of the sole count and sentenced him, as a secondfelony offender, to a prison term of 10 years to be followed by three years of postreleasesupervision. Defendant appeals.
The verdict is not against the weight of the evidence. Scientific testing established that thesubstance that the CI purchased was heroin. A police investigator testified that he did not see theseller, but listened to the drug transaction in real time over a recording device. The only disputedissue was whether defendant was the person who sold the heroin to the CI. Defendant contendsthat the CI was unworthy of belief because he received favorable treatment in exchange forassisting the police, and because his testimony was inconsistent regarding when he first metdefendant and whether he saw defendant after the sale at issue. These circumstances do notrender a person's testimony incredible as a matter of law, but are merely factors for the factfinderto consider when assessing the witness's credibility (see People v Peterkin, 159 AD3d 1196, 1197 [2018], lvdenied 31 NY3d 1151 [2018]; People v Wynn, 149 AD3d 1252, 1254-1255 [2017], lvdenied 29 NY3d 1136 [2017]). Giving deference to County Court's credibilitydeterminations, reached after the CI was subjected to extensive cross-examination on theseissues, we find that the verdict is not against the weight of the evidence (see People vPeterkin, 159 AD3d at 1198).
[*2] County Courtdid not err in denying defendant's motion to preclude identification testimony. The People aregenerally required to give notice if they intend to offer testimony regarding a witness'sobservation of the defendant at the time of the offense, with such evidence being precluded ifnotice is not given (see CPL 710.30; People v Pacquette, 25 NY3d 575, 578 [2015]). "The statutoryscheme ensures that the identifications are not the product of undue suggestiveness, and lessensthe possibility of misidentification" (People v Boyer, 6 NY3d 427, 431 [2006] [citations omitted];see People v Rodriguez, 79 NY2d 445, 449 [1992]). However, the Court of Appeals hasrecognized a confirmatory identification exception. Under that exception, CPL 710.30 does notapply—so no CPL 710.30 notice or Wade hearing is required—becausethere is no risk of misidentification where a court finds that the identifying witness knew the"defendant so well that no amount of police suggestiveness could possibly taint theidentification" (People v Rodriguez, 79 NY2d at 453; accord People v Boyer, 6NY3d at 432). Relevant factors for a court to consider when determining whether the witness issufficiently familiar with the defendant include "the number of times the witness saw thedefendant prior 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 two individualshad any conversations" (People vSanchez, 75 AD3d 911, 912 [2010], lv denied 15 NY3d 895 [2010]; accord People v Smith, 137 AD3d1323, 1326 [2016], lv denied 28 NY3d 974 [2016]).
At the hearing, the CI testified that he met defendant while the CI was driving a taxi, withtheir first encounter lasting approximately 20 minutes. He interacted with defendant a total of sixor seven times before the drug sale at issue, including once when he drove defendant in the frontseat of the taxi and conversed with him for approximately 30 minutes and once when defendantwent to the CI's house to discuss renting a room from the CI. The time between their lastencounter and the crime was perhaps a month. Considering the multiple close-rangeconversations the CI engaged in with defendant for lengthy periods on numerous occasions,County Court did not err in concluding that the CI was sufficiently familiar with defendant suchthat the identification was confirmatory (see People v Rodriguez, 79 NY2d at 450;People v Smith, 137 AD3d at 1326-1327).
We have considered the arguments that defendant raised in his pro se brief and conclude thatthey are without merit.
Garry, P.J., Egan Jr., Lynch and Devine, JJ., concur. Ordered that the judgment isaffirmed.