People v. Cole

• Decision Date: 14 June 2018
• Docket Number: 107740
• Citation: 78 N.Y.S.3d 783,162 A.D.3d 1219
• Parties: The PEOPLE of the State of New York, Respondent, v. Terrance COLE, Appellant.
• Court: New York Supreme Court — Appellate Division

162 A.D.3d 1219
78 N.Y.S.3d 783

The PEOPLE of the State of New York, Respondent,
v.
Terrance COLE, Appellant.

107740

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

Calendar Date: April 23, 2018
Decided and Entered: June 14, 2018

78 N.Y.S.3d 786

Matthew C. Hug, Albany, for appellant.

P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), for respondent.

Before: McCarthy, J.P., Egan Jr., Aarons, Rumsey and Pritzker, JJ.

MEMORANDUM AND ORDER

Rumsey, J.

Appeal from a judgment of the County Court of Albany County (Lynch, J.), rendered April 15, 2015, upon a verdict convicting defendant of the crime of burglary in the second degree (four counts).

Defendant was charged by indictment with four counts of burglary in the second degree in connection with four home invasions that occurred in the City of Albany between March 4, 2014 and April 2, 2014. Following a Mapp hearing, County Court suppressed evidence of a hammer that was seized from defendant's residence, concluding that the hammer was outside the scope of the warrant that authorized the search and, further, that seizure of the hammer was not justified by the plain view doctrine. Approximately one month later, the People moved to reargue, contending that the court erred with respect to its application of the plain view doctrine. County Court granted the motion and, upon reargument, reversed its initial suppression decision, finding that the hammer was admissible. Following a jury trial, defendant was convicted as charged and was sentenced, as a persistent violent felony offender, to concurrent prison terms of 20 years to life for each conviction. Defendant appeals.

Defendant argues that the People's motion to reargue should have been denied because it was untimely and, further, on the basis that the plain view doctrine was not raised at the Mapp hearing. Initially, defendant failed to establish that the motion was untimely because the record does not contain evidence that the initial order suppressing the evidence was served with notice of entry.¹ Defendant's argument that the motion should not have been granted because the plain view doctrine was not considered on the original motion is similarly unavailing. A motion to reargue may be based upon matters of law allegedly misapprehended in determining the prior motion (see CPLR 2221[d][2] ). In its initial order, County Court noted that seizure of the hammer was outside the scope of the warrant because the hammer was not among the items listed in the warrant, and the court considered whether there was evidence to support a claim that seizure of the hammer was justified by the plain view doctrine. The People moved to reargue on the basis that County Court misapprehended the plain view doctrine by relying upon case law that had been expressly

78 N.Y.S.3d 787

overruled by the Supreme Court of the United States. Thus, County Court properly granted the motion to reargue.

On reargument, County Court properly concluded that the hammer was admissible under the plain view doctrine. "[L]aw enforcement officers may properly seize an item in ‘plain view’ without a warrant if (i) they are lawfully in a position to observe the item; (ii) they have lawful access to the item itself when they seize it; and (iii) the incriminating character of the item is immediately apparent" ( People v. Brown, 96 N.Y.2d 80, 89, 725 N.Y.S.2d 601, 749 N.E.2d 170 [2001] ). All three elements were satisfied here. The hammer was found upon a search of defendant's home that was conducted pursuant to a valid warrant that authorized search of the entire premises for items stolen in the various burglaries. As noted by County Court, the nature of the items listed in the warrant—which included small items such as jewelry—justified a search of the contents of the premises, including containers. Thus, the police officers who conducted the search were lawfully in position to observe the hammer and had lawful access to it when they seized it. Further, the incriminating character of the hammer was immediately apparent based on the fact that forcible entry was made to each of the four homes that were burglarized.

Defendant also contends that County Court improperly denied his motion to preclude identification evidence given by Dora Febus because he was never provided with notice pursuant to CPL 710.30. We agree. CPL 710.30(1)(b) provides, in relevant part, that within 15 days of arraignment, the People must serve upon the defendant notice of their intent to offer at trial "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 or a pictorial, photographic, electronic, filmed or video recorded reproduction of him or her as such."² "Not only is the statutory mandate plain[,] but the procedure is simple. The People serve their notice upon [the] defendant, the defendant has an opportunity to move to suppress and the court may hold a Wade hearing. If the People fail to provide notice, the prosecution may be precluded from introducing such evidence at trial" ( People v. Pacquette, 25 N.Y.3d 575, 579, 14 N.Y.S.3d 775, 35 N.E.3d 845 [2015] [internal quotation marks, ellipsis and citations omitted] ). The purposes of the notice requirement are to allow for preparation of a defense and to permit orderly resolution of the admissibility of the identification testimony prior to trial (see id. ).

During her direct examination, Febus testified that approximately one week prior to the burglary, she answered a ringing doorbell to find a stranger who asked for a person who was unknown to her. The individual left before she could respond to his inquiry. She described the individual as an older black man with long hair who was carrying a satchel. Approximately 10 days after the burglary, Febus went to the police station and identified various objects that had been taken from her residence. While she was at the police station, she asked a police officer about the identity of the individual who had broken into her residence, and the officer provided defendant's name. She then asked the officer if she could see a picture of the individual, and the officer responded that it "was online on the...