People v. Gee

• Citation: 730 N.Y.S.2d 810,286 A.D.2d 62
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent,<BR>v.<BR>CARL GEE, Appellant.
• Decision Date: 28 September 2001
• Court: New York Supreme Court Appellate Division

286 A.D.2d 62
730 N.Y.S.2d 810

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
CARL GEE, Appellant.

KEHOE, J.

September 28, 2001.

[286 A.D.2d 63]

Kathleen P. McDonough, Public Defender's Office, Rochester, for appellant.

Howard R. Relin, District Attorney of Monroe County, Rochester (Amy I. Molloy of counsel), for respondent.

PINE, J. P., WISNER, HURLBUTT and GORSKI, JJ., concur.

OPINION OF THE COURT

KEHOE, J.

On this appeal by defendant from a judgment convicting him of robbery in the first degree (Penal Law § 160.15 [4]) arising out of his forcible theft of cash from a convenience store clerk, we must determine whether defendant is entitled to suppression or preclusion of identification evidence in connection with the clerk's viewings of the store surveillance video and photographs depicting defendant's commission of the robbery. We conclude that he is not.

I

At 11:20 P.M. on November 14, 1997, defendant and a female accomplice held up the clerk of a convenience store. The evidence

[286 A.D.2d 64]

against defendant included the testimony of the clerk, who identified defendant at a pretrial lineup and at trial as the male robber. The jury viewed the store surveillance video, which depicts the robbery, and a one-sheet composite of five still photographs extracted from that video, which "stills" clearly depict defendant as the male robber. Further, the jury viewed a second composite of three of those stills, blown up and positioned alongside defendant's mug shot, showing the resemblance between the robber and defendant. The record makes clear that the clerk recounted the crime and identified defendant in court based on her observations during the robbery itself, which lasted about three minutes, and also based upon her involvement in a series of pretrial "viewings," as follows:

(1) The clerk's initial viewing of the store security videotape in the presence of a police officer and the store manager on November 15, 1997. The security videotape is not a moving picture, but consists of a continuous succession of very quick cuts (10 per second) among four surveillance cameras positioned throughout the store. The viewing took place at the police station within a short time after the robbery. It lasted about 20 minutes, during which portions of the videotape were "freeze-framed" and/or replayed very slowly (which they must be in order for the viewer to discern any detail). During the viewing, the clerk said, "That's them," when the robbers were shown in the store. She also pointed out certain actions of the robbers, such as when the male robber displayed what appeared to be a firearm.

(2) The clerk's initial viewing of a one-sheet composite of five stills taken from the videotape and depicting the individuals previously designated by the clerk. That viewing took place on November 19, 1997, five days after the robbery. During that viewing, a second police officer informed the clerk that the pictures were from the videotape. At the officer's request, the clerk confirmed that the stills were accurate depictions of the robbery and its perpetrators, and she specifically identified a male individual as one of the robbers.

(3) The clerk's viewing of a lineup on December 29, 1997, during which the clerk identified defendant as the male robber.

(4) The clerk's subsequent re-viewings of both the store surveillance video and stills. Those viewings took place a few days before trial, in preparation for the clerk's testimony.

[286 A.D.2d 65]

II

Viewings 2 and 3 are the subjects of the CPL 710.30 notice served by the People on March 12, 1998;^[1] of defendant's motion to suppress the identification evidence; of the Wade hearing conducted by County Court on May 15, 1998, at which the officer involved in viewings 2 and 3 was the sole witness; of the Trial Judge's May 19, 1998 decision, which denied defendant's Wade motion on the ground that the stills composite and lineup were not so suggestive as to give rise to a risk of misidentification; and of defendant's second point on appeal, which seeks suppression of the lineup and in-court identifications. In contrast, viewing 1 and possibly viewing 4 are the subject of defendant's first point on appeal, which seeks preclusion of all evidence relating to the clerk's identification of defendant. Viewings 1 and 4 are not mentioned in the CPL 710.30 notice, were not a subject of defendant's suppression motion, the Wade hearing, or the Trial Judge's Wade decision (all of which long preceded viewing 4). The clerk's initial viewing of the store surveillance videotape (viewing 1) was first revealed during the trial testimony of the officer involved in viewing 1. Defendant promptly moved for preclusion of the identification testimony based on the People's failure to advise of that "identification procedure" in the CPL 710.30 notice. The Trial Judge denied that motion. Thereafter, viewing 4, the clerk's reviewing of the video and stills in preparation for trial, was disclosed during the clerk's testimony. That revelation did not result in any further demand for preclusion.

Notwithstanding his alibi defense, the jury found defendant guilty of robbery in the first degree.

III

Defendant contends that the court erred in denying his motion to preclude identification evidence based on the People's failure to give adequate notice of viewing 1 pursuant to CPL 710.30. He further contends that the court erred in denying his motion to suppress such identification evidence based on viewing 2, which he alleges was unnecessarily suggestive. Finally,

[286 A.D.2d 66]

defendant contends that he was denied a fair trial as a result of ineffective assistance of counsel and prosecutorial misconduct. We reject defendant's claims of ineffective assistance and prosecutorial misconduct, the various components of which are unpreserved for our review, based on matters outside this record, the subject of a prior unsuccessful CPL article 440 motion, and/or without merit.

IV

Addressing defendant's second point first, we conclude that...