PEOPLE v. CARTER (2023)

Judgment, Supreme Court, New York County (Roger S. Hayes, J. at hearing;  Robert M. Mandelbaum, J. at jury trial and sentencing), rendered October 15, 2018, as amended October 19, 2018, convicting defendant of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony drug offender previously convicted of a violent felony, to a term of six years, unanimously affirmed.

The court properly denied defendant's motion to suppress an identification made by an undercover officer.  The photo array procedures were not unduly suggestive, and there was no substantial likelihood that defendant would be unfairly singled out (see People v. Chipp, 75 N.Y.2d 327, 336, 553 N.Y.S.2d 72, 552 N.E.2d 608 [1990], cert denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70 [1990]).  It is undisputed that the photographs depicted persons of generally similar appearance.  The backgrounds of the photos were of various shades of gray, and although the background of defendant's photo was darker than that of the others, the record supports the court's finding that the color difference did not highlight defendant's photo (see People v. Floyd, 173 A.D.2d 211, 212, 569 N.Y.S.2d 92 [1st Dept. 1991], lv denied 78 N.Y.2d 966, 574 N.Y.S.2d 945, 580 N.E.2d 417 [1991];  see also People v. Mata, 174 A.D.3d 647, 647, 101 N.Y.S.3d 908 [2d Dept. 2019], lv denied 34 N.Y.3d 982, 113 N.Y.S.3d 653, 137 N.E.3d 23 [2019]).  The record fails to support defendant's claim that this identification was influenced by the officer's photo identification of another defendant several days earlier.  In any event, any error in admitting the in-court identification was harmless (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975]), as defendant's identity was independently established by a videotape, and was not at issue at trial, where defendant raised an agency defense.  We have considered and rejected defendant's remaining arguments for suppression.

The court meaningfully responded to a jury note requesting an additional explanation of the agency defense when it reread the applicable Criminal Jury Instruction and supplemented it with additional language from relevant Court of Appeals case law (see People v. Steinberg, 79 N.Y.2d 673, 684, 584 N.Y.S.2d 770, 595 N.E.2d 845 [1992];  People v. Malloy, 55 N.Y.2d 296, 301–302, 449 N.Y.S.2d 168, 434 N.E.2d 237 [1982], cert denied 459 U.S. 847, 103 S.Ct. 104, 74 L.Ed.2d 93 [1982]).  The additional instructions correctly stated the law and adequately answered the jury's inquiry (see People v. Sanchez, 35 A.D.3d 161, 161–62, 825 N.Y.S.2d 460 [1st Dept. 2006], lv denied, 8 N.Y.3d 949, 836 N.Y.S.2d 560, 868 N.E.2d 243 [2007]).  Defendant has not demonstrated that he was “seriously prejudiced” by any claimed error in the court's response (People v. Lourido, 70 N.Y.2d 428, 435, 522 N.Y.S.2d 98, 516 N.E.2d 1212 [1987]).