PEOPLE v. ALLAH (2008)

Appeal from a judgment of the County Court of Rensselaer County (Jacon, J.), rendered April 13, 2007, upon a verdict convicting defendant of the crimes of criminal possession of a weapon in the third degree and criminal possession of stolen property in the fourth degree.

Shortly after midnight on May 24, 2006, Frank Mastan, a police officer with the Housing Authority of the City of Troy, Rensselaer County, observed a black Lincoln Navigator drive in and out of an apartment complex at an excessive speed, and he made a traffic stop.   Mastan exited his patrol vehicle and approached, observing the male driver exit the vehicle.   The driver ignored Mastan's directive to get back into the vehicle, they looked directly at each other and then the driver fled on foot.   A stolen semiautomatic handgun was discovered protruding from under the driver's seat, and a debit card and other items bearing defendant's name and address were found in the vehicle.   Mastan went to the City of Troy Police Department within three hours, where a printout of defendant's license was obtained.   He identified defendant as the driver of the Navigator from a single color photograph on a computer screen of an Internet site that had been searched using defendant's name and birth date.   The Navigator had been purchased earlier that month by defendant's sister and her friend, and defendant had driven it on a daily basis.   Defendant was arrested about one month later.

Defendant was charged with criminal possession of a weapon in the third degree and criminal possession of stolen property in the fourth degree.   Following a Wade hearing at which Mastan was the sole witness, County Court denied defendant's motion to suppress Mastan's in-court identification, finding that it was a confirmatory identification that had not been unduly suggestive.   A jury convicted defendant as charged, rejecting his alibi and mistaken identification defenses, and he was sentenced as a second felony offender to an aggregate prison term of four years, with five years of postrelease supervision.

 Initially, viewing the evidence in a light most favorable to the People, we find that the evidence was legally sufficient to sustain both convictions (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).   Defendant's operation of the Navigator in which a loaded, operable semiautomatic pistol was sticking out from beneath the driver's seat established his possession under the statutory presumption (see Penal Law § 265.02 [former 4];  § 265.15[3] ), as well as his knowing possession of a stolen firearm, as charged (see Penal Law § 165.45[4];  § 165.55[1];  see also People v. Cintron, 95 N.Y.2d 329, 332-333, 717 N.Y.S.2d 72, 740 N.E.2d 217 [2000];  People v. Ashley, 45 A.D.3d 987, 989, 845 N.Y.S.2d 539 [2007], lv. denied 10 N.Y.3d 761, 854 N.Y.S.2d 323, 883 N.E.2d 1258 [2008] ).   Further reviewing the evidence in a neutral light, and deferring to the jury's determinations of credibility among contradictory witness accounts, we do not find that the verdict was, in any respect, against the weight of the evidence (see People v. Watkins, 49 A.D.3d 908, 908-909, 852 N.Y.S.2d 483 [2008], lv. denied 10 N.Y.3d 965, 863 N.Y.S.2d 149, 893 N.E.2d 455 [2008] ).

 We do agree with defendant's claim that County Court erred in finding that Mastan's identification of him from a computer picture was “confirmatory.”   There are only two recognized kinds of confirmatory identifications which, if applicable, permit summary denial of a Wade hearing and dispense with the People's obligation to provide notice because, as a matter of law, the identification could not have been the product of undue suggestiveness (see People v. Boyer, 6 N.Y.3d 427, 431, 813 N.Y.S.2d 31, 846 N.E.2d 461 [2006];  People v. Munroe, 185 A.D.2d 530, 531, 586 N.Y.S.2d 420 [1992] ).   The first, where the identifying witness knew defendant well (see People v. Boyer, 6 N.Y.3d at 431-432, 813 N.Y.S.2d 31, 846 N.E.2d 461;   People v. Rodriguez, 79 N.Y.2d 445, 453, 583 N.Y.S.2d 814, 593 N.E.2d 268 [1992] ), is inapplicable as Mastan did not previously know defendant.   The second kind is limited to those identifications made by undercover police officers who participate in planned buy-and-bust operations after a face-to-face purchase, to confirm that backup officers apprehended the right suspect (see People v. Boyer, 6 N.Y.3d at 432, 813 N.Y.S.2d 31, 846 N.E.2d 461;   People v. Mato, 83 N.Y.2d 406, 410, 611 N.Y.S.2d 92, 633 N.E.2d 446 [1994];  People v. Gordon, 76 N.Y.2d 595, 600-601, 561 N.Y.S.2d 903, 563 N.E.2d 274 [1990];  People v. Wharton, 74 N.Y.2d 921, 922-923, 550 N.Y.S.2d 260, 549 N.E.2d 462 [1989] ).

Here, while Mastan is an experienced trained police officer,¹ he was engaged in an unplanned routine traffic stop of a speeding vehicle, not a face-to-face buy-and-bust transaction in which he was placed at the scene to make an identification as contemplated by People v. Wharton (supra ) and its progeny.   Further, defendant was not arrested until a month later and, thus, Mastan's identification of him from the photograph did not “occur[ ] at a place and time sufficiently connected and contemporaneous to the arrest itself as to constitute the ordinary and proper completion of an integral police procedure” (People v. Wharton, 74 N.Y.2d at 922-923, 550 N.Y.S.2d 260, 549 N.E.2d 462;  see People v. Thompson, 306 A.D.2d 758, 759-760, 763 N.Y.S.2d 109 [2003], lvs. denied 1 N.Y.3d 576, 775 N.Y.S.2d 793, 807 N.E.2d 906, 1 N.Y.3d 581, 775 N.Y.S.2d 797, 807 N.E.2d 910 [2003] ).   Significantly, confirmatory identifications are “limited to the [two foregoing] scenarios ․ where there is no risk of misidentification” (People v. Boyer, 6 N.Y.3d at 431-432, 813 N.Y.S.2d 31, 846 N.E.2d 461), and there is no “general ‘trained officer exception’ ” (People v. Gordon, 76 N.Y.2d at 601, 561 N.Y.S.2d 903, 563 N.E.2d 274).   Thus, Mastan's identification did not qualify as confirmatory (see e.g. People v. Boyer, 6 N.Y.3d at 433, 813 N.Y.S.2d 31, 846 N.E.2d 461;  People v. Gordon, 76 N.Y.2d at 600-601, 561 N.Y.S.2d 903, 563 N.E.2d 274;  People v. Pittman, 31 A.D.3d 469, 470, 817 N.Y.S.2d 636 [2006];  People v. Thompson, 306 A.D.2d at 759-760, 763 N.Y.S.2d 109;  People v. Munroe, 185 A.D.2d at 531-532, 586 N.Y.S.2d 420;  cf. People v. Wharton, 74 N.Y.2d at 922-923, 550 N.Y.S.2d 260, 549 N.E.2d 462).

 However, even if Mastan's viewing of a single photograph was impermissibly suggestive, suppression of his in-court identification of defendant was not required if it had an independent source untainted by that identification procedure (see People v. Perez, 74 N.Y.2d 637, 638, 541 N.Y.S.2d 976, 539 N.E.2d 1104 [1989];  People v. Schiffer, 13 A.D.3d 719, 720, 785 N.Y.S.2d 789 [2004] ).   Although defendant raised that claim at the hearing (cf. People v. Williams, 85 N.Y.2d 868, 869, 626 N.Y.S.2d 49, 649 N.E.2d 1193 [1995] ), County Court made no finding on independent source.   Where, as here, the identifying witness testified at the Wade hearing and addressed factors relevant to an independent source determination, this Court may make its own finding based upon the suppression testimony (see People v. Dodt, 61 N.Y.2d 408, 417, 474 N.Y.S.2d 441, 462 N.E.2d 1159 [1984];  cf. People v. Gethers, 86 N.Y.2d 159, 163, 630 N.Y.S.2d 281, 654 N.E.2d 102 [1995];  People v. Riley, 70 N.Y.2d 523, 531-532, 522 N.Y.S.2d 842, 517 N.E.2d 520 [1987];  People v. James, 67 N.Y.2d 662, 664, 499 N.Y.S.2d 670, 490 N.E.2d 537 [1986] ).

 Mastan testified at the Wade hearing that he approached the Navigator from behind on foot and observed the driver get out of his vehicle and turn, throw something into his vehicle and drop a towel;  they looked directly at each other and Mastan remained focused on the driver the entire time, at a close distance, with the patrol car headlights and spotlight directed at the driver and the vehicle.   Considering all of the relevant factors, including Mastan's status as a trained observer (see People v. Gethers, 86 N.Y.2d at 163, 630 N.Y.S.2d 281, 654 N.E.2d 102), we find that his suppression hearing testimony constituted clear and convincing evidence demonstrating that his observations during the traffic stop, while brief, provided an independent source for his in-court identification of defendant at trial (see People v. Schiffer, 13 A.D.3d at 720, 785 N.Y.S.2d 789;  see also People v. Williams, 85 N.Y.2d at 869, 626 N.Y.S.2d 49, 649 N.E.2d 1193;  People v. Perez, 74 N.Y.2d at 638, 541 N.Y.S.2d 976, 539 N.E.2d 1104, affg. 139 A.D.2d 460, 460, 527 N.Y.S.2d 230 [1988] ).

 Further, while Mastan should not have been permitted to testify at trial on the People's direct case that he had identified defendant from the photograph within hours after the traffic stop, reversal is not required.   Such testimony regarding pretrial out-of-court photographic identification, of course, constitutes improper bolstering of trial testimony and is prohibited, except where defendant opens the door (see People v. Lindsay, 42 N.Y.2d 9, 12, 396 N.Y.S.2d 610, 364 N.E.2d 1302 [1977];  People v. Rivera, 31 A.D.3d 1060, 1061, 818 N.Y.S.2d 852 [2006], lv. denied 7 N.Y.3d 869, 824 N.Y.S.2d 614, 857 N.E.2d 1145 [2006];  People v. Mosley, 296 A.D.2d 595, 596, 744 N.Y.S.2d 577 [2002] ).   While defense counsel did not object to this testimony, defendant contends that this failure amounted to ineffective assistance of counsel and, thus, we will address the bolstering issue (see People v. Mosley, 296 A.D.2d at 595-596, 744 N.Y.S.2d 577;  see also CPL 470.15[3] [c] ).  Defense counsel opened the door by preemptively raising this issue during voir dire (see People v. Massie, 2 N.Y.3d 179, 182-184, 777 N.Y.S.2d 794, 809 N.E.2d 1102 [2004];  People v. Heckstall, 45 A.D.3d 907, 909, 845 N.Y.S.2d 488 [2007], lv. denied 10 N.Y.3d 766, 854 N.Y.S.2d 327, 883 N.E.2d 1262 [2008];  People v. Rivera, 31 A.D.3d at 1061, 818 N.Y.S.2d 852;  cf. People v. Seit, 86 N.Y.2d 92, 95-96, 629 N.Y.S.2d 998, 653 N.E.2d 1168 [1995];  People v. Hawes, 298 A.D.2d 706, 708, 750 N.Y.S.2d 132 [2002], lv. denied 99 N.Y.2d 582, 755 N.Y.S.2d 718, 785 N.E.2d 740 [2003];  People v. Mosley, 296 A.D.2d at 596, 744 N.Y.S.2d 577), and we do not find that he lacked a strategic or legitimate reason for doing so (see People v. Benevento, 91 N.Y.2d 708, 712-713, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ).   While the prosecution should not, in its case-in-chief, have been permitted to bolster Mastan's testimony before his credibility was directly challenged on cross-examination, which it was, we find that any error was harmless (see People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ).   Defendant's remaining claims lack merit.

ORDERED, that the judgment is affirmed.

FOOTNOTES

1.   Mastan testified that he is also a Rensselaer County Deputy Sheriff.

SPAIN, J.

CARDONA, P.J., CARPINELLO, MALONE JR. and STEIN, JJ., concur.