People v. Cuevas

• Decision Date: 14 November 1995
• Citation: 634 N.Y.S.2d 992,167 Misc.2d 738
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Gaspar CUEVAS, Defendant.
• Court: New York Supreme Court

Page 992

634 N.Y.S.2d 992

167 Misc.2d 738

The PEOPLE of the State of New York, Plaintiff, v. Gaspar CUEVAS, Defendant.

Supreme Court, Kings County.

Nov. 14, 1995.

[167 Misc.2d 739] Charles J. Hynes, District Attorney of Kings County (Steven Miller, of counsel), Brooklyn, for plaintiff.

Seth Greisman, Brooklyn, for defendant.

MICHAEL R. JUVILER, Justice.

This is a written version of a decision that was delivered from the bench after a hearing on a motion to suppress an undercover narcotics officer's identifications. The defendant is charged with two counts of criminal sale of a controlled substance in the first degree.

THE ISSUE

During an investigation, the undercover officer viewed surveillance videotapes and a photograph of the suspect, alleged to be the defendant. The defendant contends that each of these "identification" procedures involved undue suggestiveness. The People respond that each "identification" procedure was "confirmatory." See People v. Rodriguez, 79 N.Y.2d 445, 583 N.Y.S.2d 814, 593 N.E.2d 268; People v. Harewood, 206 A.D.2d 437, 614 N.Y.S.2d 544. The People also contend that each viewing was a valid "investigatory" procedure. The case therefore requires an analysis of "confirmatory" and "investigatory" viewings.

FINDINGS

The People have the burden of going forward with evidence to show the absence of unnecessary suggestion in the procedures. Then it becomes the defendant's burden to prove that there was unnecessary suggestion. People v. Stephens, 143 A.D.2d 692, 532 N.Y.S.2d 928. Having reviewed the evidence, I make the following findings of fact and conclusions of law.

1. October 12: The first two meetings with J.D. Junior.

In October, 1994, a team of police officers was conducting an investigation of narcotics trafficking in Bushwick, Brooklyn. Central to the investigation was the work of an undercover police officer with one year of experience undercover.

On October 12 at 5:00 in the afternoon the undercover officer met a suspect known then only as Jose. This meeting was secretly recorded by the police on videotape and audiotape. Jose did not have drugs with him, but said that he would meet the undercover officer presently.

At 6:30 that evening, at Myrtle and St. Nicholas Avenues, the undercover officer again met Jose. This time Jose brought with him another man, alleged to be the defendant, Gaspar Cuevas, whom the undercover officer had never seen before. As his identity was unknown, he was referred to in subsequent police reports as "J.D. Junior," meaning John Doe Junior. After questioning the undercover officer about his roots in Brooklyn, Jose and Junior agreed to meet him at another location later the same day. This initial encounter between the undercover officer and Junior was recorded on videotape, which was in evidence at the hearing, and on audiotape. The conversation lasted 10 minutes, during most of which the parties were face-to-face. It took place on the street in sufficient lighting to enable the videotaping and the observation by the undercover officer of Junior's face and features.

Half an hour after this initial meeting, the undercover officer met Junior, by arrangement, at DeKalb and Evergreen Avenues. This time Junior had drugs with him--62 grams of cocaine, which he sold to the undercover officer for $1,200. The transaction, which lasted 15 minutes, was conducted inside and outside a car, face-to-face. It was not taped.

2. October 14: The first videotape screening.

Two days later, on October 14, the undercover officer had a meeting with other members of the police narcotics team, including Detective John Lavin, the People's witness at the hearing. The purpose was for all the investigators to view the videotape that had been made of the street meeting of Jose, Junior, and the undercover officer, to enable the undercover officer to show the other police investigators what the two suspects looked like--and, necessarily, which suspect was which--so that during the ongoing investigation the other officers could conduct surveillance of Jose and Junior, whose identities were still unknown to the police.

I find that this viewing of the video by the undercover officer was not an unduly suggestive police identification procedure. It was not an "identification" procedure at all, in the common meaning of that term. It was an investigative procedure, designed to allow the undercover officer to share his information--specifically, his knowledge of the appearance, and in that sense the identities, of Jose and Junior--with other officers who were taking part in the same investigation, and to verify the utility of the videotape as evidence of a crime.

Contrary to the People's characterization, this procedure was not "confirmatory" of anything, except confirming that this was a videotape of the three-way encounter. A confirmatory identification is one in which the witness, usually by looking at one person or the photographic image of one person, confirms that the person who was arrested was the person, known to the witness, whom the witness had had in mind and had referred to in an earlier interview with the police. In the alternative, a confirmatory identification is one in which the witness, usually by looking at one person or the photographic image of one person, confirms that the person whom the police are targeting or plan to arrest, a specific person whose identity is known to them, is the person, known to the witness, whom the witness has in mind. In either case the one-on-one aspect of the viewing is permissible because the witness knows the suspect well enough for suggestion to be removed as a factor in the case. People v. Rodriguez, supra; People v. Harewood, supra. Neither of these two purposes was the purpose for screening the videotape on October 14.

This was not "confirmatory," but that is no reason to "suppress" it, because enabling the other investigators to benefit from the undercover officer's knowledge by screening the videotape was not an "unnecessarily suggestive" procedure: (1) there was no reasonable alternative, so it was not "unnecessary," and (2) "suggestion" had nothing to do with it. The undercover officer was not subject to suggestion, and the purpose and effect of showing the tape was not to suggest to him that either man who appeared with the undercover officer on the tape was guilty of anything. The communication was in reverse: it flowed from the undercover officer Furthermore, the videotape of Jose, Junior, and the undercover officer included many other persons on the street, some male, and some female. While not identical to the videotape at issue in People v. Edmonson, 75 N.Y.2d 672, 555 N.Y.S.2d 666, 554 N.E.2d 1254, which showed only passersby without concentrating on particular persons, and therefore was not suggestive, it was similar in important respects to the tape in Edmonson. It was a videotape of everyone at a specific street location. It showed many persons walking and standing on a busy street, not just the person referred to as Junior. Under all of the circumstances, this was no more "suggestive" than a lineup containing a suspect and a few fillers. See People v. Hernandez, 164 A.D.2d 920, 559 N.Y.S.2d 754 (there is no prescribed number of persons for a lineup); People v. Chipp, 75 N.Y.2d 327, 553 N.Y.S.2d 72, 552 N.E.2d 608, cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70; People v. Baptiste, 201 A.D.2d 659, 608 N.Y.S.2d 266 (there is no requirement that the defendant in a lineup be surrounded by persons whose physical characteristics are nearly identical to his).

to his police colleagues, not from them to him; the screening of the videotape was functionally equivalent to his having made the tape, brought it to his colleagues, and shown it to them.

In addition, under the circumstances of this case, the undercover officer, unlike the civilian witness who viewed the videotape in Edmonson, was not subject to suggestion. He was a trained investigator whose functions included observing and describing narcotics sellers, he had a year of experience doing that, and only two days before the screening he had spent a total of 25 minutes in pre-arranged face-to-face meetings with the suspect under intense, memorable circumstances, the negotiation of a substantial drug purchase.

In the light of all of these facts, this viewing of the tape differs from an inherently suggestive one-on-one station house showup conducted a week or more after a routine drug purchase. See, e.g., People v. Gordon, 76 N.Y.2d 595, 561 N.Y.S.2d 903, 563 N.E.2d 274; People v. Baron, 159 A.D.2d 710, 553 N.Y.S.2d 195; People v. Smith, 203 A.D.2d 495, 610 N.Y.S.2d 594.

3. October 20: The third meeting with J.D. Junior.

The next relevant event occurred six days after the first video screening and eight days after the first drug sale: On October 20, the undercover officer met J.D. Junior at Wilson and Myrtle Avenues. The meeting had been arranged so that the undercover officer could buy 125 grams of cocaine, twice the amount of the first purchase. The sale took place in the undercover officer's car, in daylight, at 5:15 in the afternoon. The transaction took 15 minutes. Junior sat in the front passenger seat, the undercover officer next to him in the driver's seat. Their conversation was broadcast secretly to other police officers by radio. The car was videotaped from a distance.

After Junior had left the undercover officer's car, a videotape was made of a sidewalk in front of a restaurant at Myrtle and Central Avenues, which the police believed Junior and Jose frequented. The purpose of the videotaping was to see and record whether Junior or Jose would appear there to deliver the money that the undercover officer had given Junior for the 125 grams of cocaine. The videotape, in evidence at the hearing, shows persons passing by and others entering or leaving the restaurant. Some are male, some female. The person who appears most prominently in...