People v. Candelario

• Court: New York Supreme Court — Appellate Division
• Citation: People v. Candelario, 548 N.Y.S.2d 448, 156 A.D.2d 191 (N.Y. App. Div. 1989)
• Decision Date: 12 December 1989
• Parties: The PEOPLE of the State of New York, Respondent, v. Heriberto CANDELARIO, Defendant-Appellant.

Page 448

548 N.Y.S.2d 448

156 A.D.2d 191

The PEOPLE of the State of New York, Respondent, v. Heriberto CANDELARIO, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Dec. 12, 1989.

C. Welykyj, for respondent.

N.E. Little, New York City, for defendant-appellant.

Before MURPHY, P.J., and ROSS, MILONAS, KASSAL and RUBIN, JJ.

MEMORANDUM DECISION.

Judgment of the Supreme Court, New York County (Jerome W. Marks, J.), rendered April 14, 1988, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and sentencing him to a term of 1 to 3 years, unanimously affirmed.

Defendant was arrested for selling heroin to undercover Police Officer Nelson Vargas. At trial, on the People's direct case and over objection by defendant, Officer Vargas was permitted to testify to the description of the person who sold him the heroin, which he radioed to his back-up team. On appeal, defendant argues that this testimony impermissibly buttressed the reliability of Vargas' identification of the defendant at trial.

We find that Officer Vargas was properly permitted to testify to the defendant's physical characteristics, which he noted prior to and during the sale of the heroin to demonstrate the basis for the back-up officer's appearance on the scene and arrest of the particular person described (see, People v. Love, 92 A.D.2d 551, 459 N.Y.S.2d 122; People v. Switzer, 115 A.D.2d 673, 496 N.Y.S.2d 507). In the absence of such testimony, the jury would be left to speculate as to the basis for defendant's arrest, and the defense would be able to argue "mistaken identification" on summation.

Since 1927, when Section 393-b of the Code of Criminal Procedure was enacted (see current CPL 60.30), a witness is permitted to testify as to a previous identification by himself of an accused, while another person, other than the identifier, is still prohibited from testifying as to that identification (People v. Trowbridge, 305 N.Y. 471, 476-477, 113 N.E.2d 841; People v. Caserta, 19 N.Y.2d 18, 21, 277 N.Y.S.2d 647, 224 N.E.2d 82). The testimony introduced herein does not differ, in principle and in practical effect, from testimony by an eyewitness that he previously identified an accused, which is clearly permitted by CPL 60.30. In each case, the essential fact being conveyed to the jury is that the witness observed features of the individual who was seen to commit a crime, sufficient to later identify the accused as that person.

We further observe that Officer Vargas' testimony that he radioed to his back-up team the description of the person who sold him heroin was not characterized by the two most important elements which make hearsay testimony prejudicial and, therefore, inadmissible. There was no violation of the Confrontation Clause, because Officer Vargas was subject to cross-examination by the defendant (cf., People v. Jimenez, 102 A.D.2d 439, 442, 477 N.Y.S.2d 170). Nor was there a parade of witnesses whose testimony was introduced to bolster Officer Vargas' testimony. That danger was summarized by the Court of Appeals in (People v. Caserta, supra, 19 N.Y.2d at 21, 277 N.Y.S.2d 647, 224 N.E.2d 82). "Where the opportunity...