| People v Davis |
| 2019 NY Slip Op 05943 [174 AD3d 1538] |
| July 31, 2019 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Jeremy M. Davis, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Scott Myles of counsel), for respondent.
Appeal from a judgment of the Supreme Court, Monroe County (Alex R. Renzi, J.), renderedJuly 30, 2014. The appeal was held by this Court by order entered March 23, 2018, decision wasreserved and the matter was remitted to Supreme Court, Monroe County, for further proceedings(159 AD3d 1531 [4th Dept 2018]). The proceedings were held and completed.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofcriminal possession of a weapon in the second degree (Penal Law § 265.03 [3]) andcriminal possession of a weapon in the third degree (§ 265.02 [3]) arising from anincident in which a police officer and his partner approached and eventually searched a parkedvehicle that was occupied by defendant, his codefendant, and two other people. When this appealwas previously before us, we concluded that Supreme Court erred in summarily denyingdefendant's motion to preclude the identification testimony of the officer and his partner in theabsence of notice pursuant to CPL 710.30 (1) (b) (People v Davis, 159 AD3d 1531 [4thDept 2018]). We held this case, reserved decision, and remitted the matter to Supreme Court "fora hearing to determine whether the officer and his partner engaged in identification procedures atthe police station within the purview of CPL 710.30 and, if so, whether such identifications weremerely confirmatory" (id. at 1534). Following the hearing on remittal, the courtdetermined that the identifications of defendant at the police station by the officer and the partnerwere confirmatory.
We reject defendant's contention that the court erred in determining that the officer'sidentification of him at the police station was confirmatory. "Case-by-case analyses of the factsand circumstances . . . remain necessary" (People v Mato, 83 NY2d 406,411 [1994]) and "[c]omprehensive analysis, not superficial categorization, ultimately governs"whether a police identification is confirmatory (People v Gordon, 76 NY2d 595, 601[1990]; see People v Boyer, 6 NY3d427, 433 [2006]). Here, the officer's hearing testimony established that defendant waspresent at a residence at which the officer had assisted in performing a probation check ofanother individual two weeks prior to the subject incident. While he was in the residence, theofficer spent approximately 20 to 25 minutes within an arm's length of defendant, conversed withdefendant during that period of time, and had no other tasks to perform during the probationcheck that would have drawn his attention away from defendant. Thereafter, during the subjectincident, the officer approached the driver's side of the vehicle and, upon leaning down to lookinto the vehicle, immediately recognized the front seat passenger as defendant based on theirinteraction at the residence two weeks earlier. The officer mentioned to defendant that they hadjust talked and, in response, defendant agreed and confirmed that he knew the officer. The officerwas approximately six feet away from defendant, and the street lights provided sufficient lightfor the officer to see the faces of the occupants of the vehicle. When, in contravention of theofficer's request, defendant kept moving his hands down from the dashboard, the officer began towalk around the front of the vehicle to continue his conversation with defendant. The officercould still see defendant's face at that time. Defendant then exited the vehicle, fled throughnearby yards, and was unsuccessfully pursued by the officer. The officer directed a third officerto take defendant into custody at the residence at which the probation check had beenperformed.
The court credited the testimony of the officer and, contrary to defendant's contention," '[t]here is no basis for disturbing the . . . court's credibility determinations,which are supported by the record' " (People v Vernon, 164 AD3d 1657, 1658 [4th Dept 2018], lvdenied 32 NY3d 1179 [2019]; seePeople v Brown, 123 AD3d 938, 939 [2d Dept 2014], lv denied 25 NY3d 949[2015]). Given the quality of the officer's viewing of defendant during the subjectincident—as evinced by the officer's immediate recognition of the front seat passenger asdefendant based on their prior face-to-face interaction and defendant's confirmation thereof andby the favorable viewing conditions, which included good lighting and close range—weconclude that the viewing "constitute[s] an 'observation of . . . defendant. . . so clear that the identification [at the police station] could not be mistaken'thereby obviating the risk of undue suggestiveness" (People v Pacquette, 25 NY3d 575, 580 [2015]; see People vTurner, 233 AD2d 932, 933 [4th Dept 1996], lv denied 89 NY2d 1102 [1997]; cf.Boyer, 6 NY3d at 432-433; People v Newball, 76 NY2d 587, 591-592 [1990]; seegenerally People v Wharton, 74 NY2d 921, 922-923 [1989]). Inasmuch as the officer'sidentification of defendant at the police station was merely confirmatory, defendant was notentitled to CPL 710.30 notice with respect to that identification and the court did not err inrefusing to preclude the identification testimony of the officer (see Boyer, 6 NY3d at432; Wharton, 74 NY2d at 922-923). We note that the totality of the interactionsparticular to the officer and defendant here differentiates this case from that of the codefendant,i.e., the left rear seat passenger, in which the officer's initial viewing of the codefendant arosesolely from the officer standing by the vehicle for approximately three minutes while engagedwith all of the occupants (cf. People vClay, 147 AD3d 1499, 1501 [4th Dept 2017], lv denied 29 NY3d 1030[2017]).
We agree with defendant that the court erred in refusing to preclude the identificationtestimony of the partner based on the People's failure to provide a CPL 710.30 notice. Unlike theofficer, the partner had only brief and fleeting, low-quality viewings of defendant that areinsufficient to establish that, "as a matter of law, the identification at issue could not be theproduct of undue suggestiveness" (Boyer, 6 NY3d at 431; see Pacquette, 25NY3d at 580; Clay, 147 AD3d at 1500-1501). Nevertheless, we conclude that the error isharmless (see Pacquette, 25 NY3d at 580). "Even in the absence of [the partner's]identification testimony, the evidence at trial overwhelmingly established that defendant was the[occupant of the front passenger seat under which a defaced handgun was discovered]"(id.). The officer—who was experienced, had prior familiarity with defendant,immediately recognized the front seat passenger as defendant, and was able to observe defendantat close range—"unequivocally identified defendant" at trial as the front seat passenger(id.). In addition, "defendant's flight from police officers evinced a consciousness ofguilt" (id.), and the third officer's testimony that defendant had fresh scratches on hiswrists when he took defendant into custody shortly thereafter is consistent with defendant havingfled through nearby yards. Present—Smith, J.P., Peradotto, Lindley, Curran and Winslow,JJ.