People v. Casanova, 107515.

CourtNew York Supreme Court Appellate Division
Writing for the CourtCLARK, J.
Citation60 N.Y.S.3d 503,152 A.D.3d 875
Parties The PEOPLE of the State of New York, Respondent, v. Lazaro CASANOVA, Also Known as Cuba, Appellant.
Decision Date13 July 2017
Docket Number107515.

152 A.D.3d 875
60 N.Y.S.3d 503

The PEOPLE of the State of New York, Respondent,
v.
Lazaro CASANOVA, Also Known as Cuba, Appellant.

107515.

Supreme Court, Appellate Division, Third Department, New York.

July 13, 2017.


60 N.Y.S.3d 506

Danielle Neroni Reilly, Albany, for appellant.

P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.

Before: PETERS, P.J., GARRY, ROSE, CLARK and RUMSEY, JJ.

CLARK, J.

Appeal from a judgment of the County Court of Albany County (Lynch, J.), rendered February 5, 2015, upon a verdict convicting defendant of the crimes of criminal sale of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the third degree.

On February 26, 2012, during a controlled buy operation overseen by the Community Response Unit of the City of Albany Police Department, defendant allegedly sold heroin to a male confidential informant (hereinafter CI). Thereafter, on March 13, 2012 and again on March 19, 2012, defendant allegedly sold heroin to a different CI, this time a female, in two additional controlled buy operations. On March 28, 2012, nine days after the third controlled buy, defendant was arrested and a search of his person revealed that he was in possession of 14 glassine envelopes of heroin. Defendant was charged by three indictments, which Supreme Court (Breslin, J.) subsequently joined upon the People's motion with three counts of criminal sale of a controlled substance in the third degree, one count of criminal possession of a controlled substance in the third degree and one count of criminal possession of a controlled substance in the seventh degree. After a jury trial, defendant was convicted of two counts of criminal sale of a controlled substance in the third degree and one count of criminal possession of a controlled substance in the third degree and sentenced to an aggregate prison term of seven years, followed by three years of postrelease supervision. Defendant thereafter appealed the judgment of conviction.

On appeal, this Court found that "various remarks made by the prosecutor during summation were so prejudicial in their cumulative effect that they operated to

60 N.Y.S.3d 507

deny defendant his fundamental right to a fair trial" and that, therefore, reversal of the judgment of conviction and a new trial was required ( People v. Casanova, 119 A.D.3d 976, 977, 977–980, 988 N.Y.S.2d 713 [2014] ). This Court also held that a Wade hearing was necessary and directed that such hearing be held upon remittal ( id. at 980, 988 N.Y.S.2d 713 ).

Upon remittal, County Court (Lynch, J.) denied defendant's motion to sever the previously consolidated indictments and, after a Wade hearing, denied defendant's motion to suppress the male CI's pretrial identification of defendant. Following a jury trial, defendant was ultimately convicted of the same offenses—two counts of criminal sale of a controlled substance in the third degree and one count of criminal possession of a controlled substance in the third degree. Defendant was subsequently sentenced, as a second felony drug offender, to three concurrent prison terms of nine years, with three years of postrelease supervision. Defendant now appeals, and we affirm.

County Court did not err in denying defendant's motion to sever the indictments. "Offenses are joinable if, among other things, they are based upon different criminal transactions but defined by the same or similar statutory provisions, or if proof of either offense would be material and admissible as evidence-in-chief at the trial of the other offense" ( People v. Rogers, 94 A.D.3d 1246, 1248, 942 N.Y.S.2d 260 [2012], lv. denied 19 N.Y.3d 977, 950 N.Y.S.2d 359, 973 N.E.2d 769 [2012] ; accord People v. Wells, 141 A.D.3d 1013, 1015, 35 N.Y.S.3d 795 [2016], lvs. denied 28 N.Y.3d 1183, 1189, 52 N.Y.S.3d 710, 75 N.E.3d 102 [2017] ; see CPL 200.20[2][b], [c] ). "If the offenses at issue were joined solely because they were based upon the same or similar statutes, a court may—‘in the interest of justice and for good cause shown’—order that such offenses be tried separately" ( People v. Raucci, 109 A.D.3d 109, 117, 968 N.Y.S.2d 211 [2013], lv. denied 22 N.Y.3d 1158, 984 N.Y.S.2d 642, 7 N.E.3d 1130 [2014], quoting CPL 200.20[3] ; see People v. Wells, 141 A.D.3d at 1016, 35 N.Y.S.3d 795). However, if the offenses are properly joined on any other basis, the trial court lacks the statutory authority to sever (see People v. Parbhudial, 135 A.D.3d 978, 980, 22 N.Y.S.3d 648 [2016], lv. denied 27 N.Y.3d 967, 36 N.Y.S.3d 628, 56 N.E.3d 908 [2016] ; People v. Raucci, 109 A.D.3d at 117, 968 N.Y.S.2d 211 ; People v. Rogers, 94 A.D.3d at 1248, 942 N.Y.S.2d 260 ; see also CPL 200.20 [3 ] ).

Here, the indictments were properly joinable under CPL 200.20(2)(c) because the charged offenses—namely, criminal sale of a controlled substance in the third degree (see Penal Law § 220.39[1] ) and criminal possession of a controlled substance in the third degree (see Penal Law § 220.16 [1 ] )—"are defined by the same or similar statutory provisions and consequently are the same or similar in law" ( CPL 200.20[2] [c] ; see People v. Castle, 251 A.D.2d 891, 892, 674 N.Y.S.2d 840 [1998], lv. denied 92 N.Y.2d 923, 680 N.Y.S.2d 465, 703 N.E.2d 277 [1998] ). These offenses were also properly joinable under CPL 200.20(2)(b) because evidence of defendant's past drug sales is admissible as evidence of his possession of a controlled substance with intent to sell (see People v. Morman, 145 A.D.3d 1435, 1437, 43 N.Y.S.3d 619 [2016], lv. denied 29 N.Y.3d 999, 57 N.Y.S.3d 721, 80 N.E.3d 414 [2017] ; see generally People v. Raucci, 109 A.D.3d at 117, 968 N.Y.S.2d 211 ). Accordingly, as the indictments were joinable under either CPL 200.20(2)(b) or (c), County Court lacked the statutory authority to sever the indictments (see

60 N.Y.S.3d 508

People v. Abdullah, 133 A.D.3d 925, 928, 20 N.Y.S.3d 659 [2015], lv. denied 27 N.Y.3d 990, 38 N.Y.S.3d 101, 59 N.E.3d 1213 [2016] ).1

Nor are we persuaded by defendant's assertion that the pretrial identification procedure used by police—a photo array—was unduly suggestive and that, therefore, the male CI's identification of him should have been suppressed. "A photo array is unduly suggestive if some characteristic of one picture draws the viewer's attention in such a way as to indicate that the police have made a particular selection" ( People v. Yousef, 8 A.D.3d 820, 821, 778 N.Y.S.2d 326 [2004] [internal quotation marks and citations omitted], lv. denied 3 N.Y.3d 743, 786 N.Y.S.2d 822, 820 N.E.2d 301 [2004] ; see People v. Muniz, 93 A.D.3d 871, 872, 939 N.Y.S.2d 181 [2012], lv. denied 19 N.Y.3d 965, 950 N.Y.S.2d 117, 973 N.E.2d 215 [2012] ; People v. Lawal, 73 A.D.3d 1287, 1288, 900 N.Y.S.2d 515 [2010] ). "Accordingly, the relevant characteristics of the individuals included in a photograph array must be sufficiently similar so as to not ‘create a substantial likelihood that the defendant would be singled out for identification’ " ( People v. Lanier, 130 A.D.3d 1310, 1312, 15 N.Y.S.3d 241 [2015], lv. denied 26 N.Y.3d 1009, 20 N.Y.S.3d 550, 42 N.E.3d 220 [2015], quoting 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] ). While the People have the initial burden of establishing the reasonableness of police conduct and the absence of any undue suggestion, it is the defendant who bears the ultimate burden of proving that the pretrial identification procedure was unduly suggestive (see People v. Wells, 141 A.D.3d at 1017, 35 N.Y.S.3d 795; People v. Matthews, 101 A.D.3d 1363, 1364, 956 N.Y.S.2d 317 [2012], lvs. denied 20 N.Y.3d 1101, 1104, 965 N.Y.S.2d 797, 988 N.E.2d 535 [2013] ).

At the Wade hearing, Kevin Meehan, a detective involved in the controlled buy operations and defendant's arrest, testified that he presented the male CI with a manila folder containing a six-photograph array, which was generated by a computer program that pulls photographs from a statewide mug-shot database. Meehan stated that he informed the male CI that he "may or may not know" a person depicted in the photo array and that, before the male CI looked at the photo array, Meehan stepped back, outside of the male CI's line of vision, so as to not influence the identification process. Meehan testified that the male CI then opened the manila folder and identified defendant as his dealer. The photo array contained six color, close-up photographs with similar backgrounds of six males of varying skin tones, all with short dark hair, similar facial features and expressions and appearing to be of the same general age and build. Our review of the photo array belies defendant's assertion that there is a "significant difference" in his photograph as compared to the remaining five photographs. There is no requirement that the other individuals depicted in the photo array be " ‘nearly identical’ " to the defendant ( People v. Matthews, 101 A.D.3d at 1364, 956 N.Y.S.2d 317, quoting People v. Chipp, 75 N.Y.2d at 336, 553 N.Y.S.2d 72, 552 N.E.2d 608 ). In our view, the physical characteristics of the six males depicted in the photo array are sufficiently similar so as to satisfy us that there was not a substantial likelihood that defendant...

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11 practice notes
  • People v. Quintana, 107273
    • United States
    • New York Supreme Court Appellate Division
    • March 8, 2018
    ...who bears the ultimate burden of proving that the pretrial identification procedure was unduly suggestive" ( People v. Casanova, 152 A.D.3d 875, 877, 60 N.Y.S.3d 503 [2017] [citations omitted], lvs denied 30 N.Y.3d 948, 67 N.Y.S.3d 131, 89 N.E.3d 521 [2017] ; accord People v. Chipp 75 ......
  • People v. Box, 1198
    • United States
    • New York Supreme Court Appellate Division
    • March 13, 2020
    ...was harmless (see generally People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ; People v. Casanova, 152 A.D.3d 875, 878–879, 60 N.Y.S.3d 503 [3d Dept. 2017], lv denied 30 N.Y.3d 948, 67 N.Y.S.3d 131, 89 N.E.3d 521 [2017] ). Defendant's contention that he re......
  • People v. Cowan, 109345
    • United States
    • New York Supreme Court Appellate Division
    • November 27, 2019
    ...the jury's fact-finding function ( People v. Hicks, 2 N.Y.3d 750, 751, 778 N.Y.S.2d 745, 811 N.E.2d 7 [2004] ; see People v. Casanova, 152 A.D.3d 875, 878, 60 N.Y.S.3d 503 [2017], lvs denied 30 N.Y.3d 948, 67 N.Y.S.3d 131, 132, 89 N.E.3d 521, 522 [2017]; People v. Berry, 5 A.D.3d 866, 867, ......
  • People v. White, 947 KA 11-00481.
    • United States
    • New York Supreme Court Appellate Division
    • September 29, 2017
    ...v. Ocampo, 52 A.D.3d 741, 742, 860 N.Y.S.2d 596, lv. denied 11 N.Y.3d 792, 866 N.Y.S.2d 618, 896 N.E.2d 104 ; see People v. Casanova, 152 A.D.3d 875, 879–880, 60 N.Y.S.3d 503 ).In addition, the increased sentence is justified by "defendant's election, after his successful appeal, of a ......
  • Request a trial to view additional results
13 cases
  • People v. Quintana, 107273
    • United States
    • New York Supreme Court Appellate Division
    • March 8, 2018
    ...who bears the ultimate burden of proving that the pretrial identification procedure was unduly suggestive" ( People v. Casanova, 152 A.D.3d 875, 877, 60 N.Y.S.3d 503 [2017] [citations omitted], lvs denied 30 N.Y.3d 948, 67 N.Y.S.3d 131, 89 N.E.3d 521 [2017] ; accord People v. Chipp 75 N.Y.2......
  • People v. Guerra, Ind. No. 708/2020
    • United States
    • United States State Supreme Court (New York)
    • August 8, 2022
    ...A.D.3d 847 [3d Dept 2021], lv denied 37 N.Y.3d 1030 [2021]; People v Quintana, 159 A.D.3d 1122, 1126 [3d Dept 2018]; People v Casanova, 152 A.D.3d 875, 877 [3d Dept 2017]; People v McDonald, 110 A.D.3d 1490, 1490 [4th Dept 2013]; People v Moshier, 110 A.D.3d 832, 832 [2d Dept 2013]; People ......
  • People v. Petillo, Ind. No. 708/2020
    • United States
    • United States State Supreme Court (New York)
    • August 8, 2022
    ...A.D.3d 847 [3d Dept 2021], lv denied 37 N.Y.3d 1030 [2021]; People v Quintana, 159 A.D.3d 1122, 1126 [3d Dept 2018]; People v Casanova, 152 A.D.3d 875, 877 [3d Dept 2017]; People v McDonald, 110 A.D.3d 1490, 1490 [4th Dept 2013]; People v Moshier, 110 A.D.3d 832, 832 [2d Dept 2013]; People ......
  • People v. Cowan, 109345
    • United States
    • New York Supreme Court Appellate Division
    • November 27, 2019
    ...the jury's fact-finding function ( People v. Hicks, 2 N.Y.3d 750, 751, 778 N.Y.S.2d 745, 811 N.E.2d 7 [2004] ; see People v. Casanova, 152 A.D.3d 875, 878, 60 N.Y.S.3d 503 [2017], lvs denied 30 N.Y.3d 948, 67 N.Y.S.3d 131, 132, 89 N.E.3d 521, 522 [2017]; People v. Berry, 5 A.D.3d 866, 867, ......
  • Request a trial to view additional results

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