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People v. Anderson

Supreme Court of New York, Third Department

April 27, 2017

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
GUY ANDERSON, Appellant.

          Calendar Date: February 23, 2017

          Danielle Neroni Reilly, Albany, for appellant, and appellant pro se.

          Eric T. Schneiderman, Attorney General, New York City (Matthew B. Keller of counsel), for respondent.

          Before: Peters, P.J., McCarthy, Garry, Rose and Aarons, JJ.

          MEMORANDUM AND ORDER

          GARRY, J.

         Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered July 31, 2013, upon a verdict convicting defendant of the crimes of conspiracy in the second degree, criminal sale of a controlled substance in the first degree (four counts), criminal sale of a controlled substance in the second degree (three counts), criminal sale of a controlled substance in the third degree (two counts), attempted criminal possession of a controlled substance in the first degree (two counts), attempted criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree and operating as a major trafficker.

         Following an investigation by the Attorney General's Organized Crime Task Force, defendant was arrested in connection with an alleged conspiracy to possess and sell cocaine and heroin in Albany County, various other counties in New York, and Vermont, and charged with multiple crimes related to the criminal sale and possession of controlled substances. Following a joint jury trial, [1] defendant was convicted of conspiracy in the second degree, criminal sale of a controlled substance in the first degree (four counts), criminal sale of a controlled substance in the second degree (three counts), criminal sale of a controlled substance in the third degree (two counts), attempted criminal possession of a controlled substance in the first degree (two counts), attempted criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree and operating as a major trafficker. He was thereafter sentenced as a persistent felony offender and a violent predicate offender to an aggregate prison term of 165 years to life. Defendant appeals.

         Initially, we find no merit in defendant's contention that County Court should have granted his motion to suppress evidence resulting from a search of his storage unit. A court's determination that probable cause exists for the issuance of a search warrant "must be afforded great deference" (People v Ferguson, 136 A.D.3d 1070, 1072 [2016] [internal quotation marks and citations omitted]; see People v Mitchell, 57 A.D.3d 1232, 1233 [2008], lv denied 12 N.Y.3d 760');">12 N.Y.3d 760 [2009]), and "[m]inor discrepancies or misstatements do not amount to egregious inaccuracies affecting a probable cause determination" (People v Myers, 241 A.D.2d 705, 707 [1997], lv denied 91 N.Y.2d 877');">91 N.Y.2d 877 [1997]). Here, an affidavit supporting the search warrant application incorrectly identified the specific vehicle upon which a GPS device had been placed for the purpose of tracking defendant's visits to the storage unit. However, the investigator who completed the affidavit testified that this was an unintentional error, and stated that another vehicle, also belonging to defendant, was in fact monitored by the investigators. County Court credited this testimony and found that the evidence, taken as a whole, clearly indicated that the correct vehicle was monitored and that the application was otherwise supported by probable cause. Thus, defendant did not meet his burden to establish that the warrant application was based upon statements that "were knowingly false or made in reckless disregard of the truth" (People v Williams, 138 A.D.3d 1233, 1237 [2016] [internal quotation marks and citations omitted], lvs denied 28 N.Y.3d 932, 939 [2016]; see People v Myers, 241 A.D.2d at 707).

         Next, we reject defendant's contention that his suppression motion should have been granted as to eavesdropping warrants pertaining to certain coconspirators. Defendant preserved the issue of his standing to challenge the warrants by raising it in his omnibus motion and, contrary to County Court's determination, we find that he had standing to raise this issue. The challenged eavesdropping warrants permitted the interception of communications on phones used by several of defendant's alleged coconspirators. The People subsequently submitted a new application for a warrant to intercept defendant's cell phone communications that was supported, in part, by transcripts of intercepted conversations between one of the conspirators and defendant that allegedly revealed that defendant was supplying drugs to the conspirators. As a party to these conversations, with reason to believe that they would be offered against him, defendant had standing to challenge the warrants (see CPL 710.20 [2]; People v Fonville, 247 A.D.2d 115, 118 n [1998]; People v Truver, 244 A.D.2d 990, 990-991 [1997]).

         County Court did not, however, err in denying defendant's motion on this ground, as the warrant applications established that there was probable cause for their issuance and that traditional investigative procedures were unlikely to succeed (see CPL 700.15 [2], [4]; 700.20 [2]; People v Alnutt, 107 A.D.3d 1139, 1141 [2013], lv denied 22 N.Y.3d 1136');">22 N.Y.3d 1136 [2014]; People v Ross, 97 A.D.3d 843, 844-845 [2012], lv denied 20 N.Y.3d 935');">20 N.Y.3d 935 [2012]). It was not necessary to establish "that every conceivable method of investigation has been tried and failed, " and the applications successfully demonstrated "the nature and progress of the investigation and the difficulties inherent in the use of normal law enforcement methods" (People v Brown, 233 A.D.2d 764, 765 [1996] [internal quotation marks, ellipsis and citations omitted], lv denied 89 N.Y.2d 1009');">89 N.Y.2d 1009 [1997]; see People v Rodriguez, 274 A.D.2d 826, 828 [2000], lv denied 95 N.Y.2d 938');">95 N.Y.2d 938 [2000]). The record provides no support for defendant's contention that the applications were based on knowing or reckless false averments by police (see People v Griffin, 234 A.D.2d 718, 720 [1996], lv denied 89 N.Y.2d 1036');">89 N.Y.2d 1036 [1997]).

         As for defendant's contention that the sealing requirements of CPL 700.50 (2) and 700.65 (3) were not complied with in that several of the sealing orders were not signed by the justice who issued the warrants, the sealing requirements are strictly construed and the People are required to offer a satisfactory explanation for any delay that may take place in sealing the evidence (see People v Winograd, 68 N.Y.2d 383, 394-395 [1986]; People v Mullen, 152 A.D.2d 260, 267 [1989]). In a county where other justices are available, if the People are unable to locate the issuing justice, they are required to find another justice to issue the sealed order (see People v Winograd, 68 N.Y.2d at 394-395; People v Gallina, 66 N.Y.2d 52, 59-60 [1985]; People v Fonville, 247 A.D.2d at 127). Here, investigators complied with this requirement and avoided undue delay by locating another justice to timely seal the evidence on three occasions when the issuing justice was unavailable.

         Next, defendant challenges County Court's denial of his motion to suppress identification testimony by several investigators on the ground that the People failed to serve the notice required by CPL 710.30. Before trial, the People advised defendant of their intention to present identification testimony and indicated that statutory notice was not required because the identifications were confirmatory. Defendant moved for an order precluding this evidence, and County Court conducted a hearing pursuant to People v Rodriguez (79 N.Y.2d 445');">79 N.Y.2d 445 [1992]). The hearing testimony revealed that, in the course of earlier surveillance of another individual, investigators saw the individual meet with defendant, then unknown to them, and sought to determine his identity. A state trooper conducted a traffic stop immediately thereafter and identified defendant by examining his license and registration. The investigators then posted a copy of defendant's driver's license photograph on the wall of the investigation room. At the Rodriguez hearing, each of the investigators testified that they saw the posted photograph on many occasions thereafter in the course of their work, and were thus able to recognize and identify defendant when they began conducting visual surveillance of him. Based upon this testimony, the court concluded that the investigators' identifications were confirmatory and that statutory notice was not required.

         We agree with County Court that statutory notice was not required, but on a different ground. CPL 710.30 requires the People to serve notice upon the defendant of their intention to introduce "testimony regarding an observation of the defendant either at the time or place of the commission of the offense or upon some other occasion relevant to the case, to be given by a witness who has previously identified him [or her] as such" (CPL 710.30 [1] [b]). Certain identifications that fall within the scope of the statute but involve no possibility of undue suggestiveness or misidentification have been held to be exempt from the notice requirement, but these confirmatory identifications are limited to two well-defined scenarios that are inapplicable here (see People v Boyer, 6 N.Y.3d 427, 431-432 [2006]; People v Rodriguez, 79 N.Y.2d at 449-451; People v Wharton, 74 N.Y.2d 921, 922-923 [1989]; People v Allah, 57 A.D.3d 1115, 1116-1117 [2008], lv denied 12 N.Y.3d 780');">12 N.Y.3d 780 [2009]). Nevertheless, defendant's preclusion motion was properly denied, as the notice requirements of CPL 710.30 do not apply here.

         The notice requirement applies to police-arranged identifications, and its purpose is to allow the defense an opportunity to inquire into whether misleading or suggestive procedures were used that could affect the accuracy of a later identification in court (see People v Gissendanner, 48 N.Y.2d 543, 552 [1979]; People v Butler, 16 A.D.3d 915, 916 [2005], lv denied 5 N.Y.3d 786 [2005]). "A failure to appreciate this fundamental purpose, and, particularly, the distinction between an observation and an identification procedure, may result in the erroneous invocation of CPL 710.30 (1) (b) any time a witness sees a defendant on more than one occasion prior to trial" (People v Peterson, 194 A.D.2d 124, 128 [1993] [citations omitted], lv denied 83 N.Y.2d 856 [1994]). The statute's purposes are implicated only when the identifying witness has experienced "two distinct pretrial 'viewings' of a defendant" in which the witness first observed the defendant at the time or place of an offense or another relevant occasion, and then participated in "a separate, police-initiated, identification procedure, such as a lineup, showup or photographic array, which takes place subsequent to the observation forming the basis for the witness's trial testimony and prior to the trial" (id. [emphasis omitted]). Critically, this second procedure "is not itself probative of defendant's guilt or innocence but is intended merely to 'establish[] the ...


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