People v. Gordon

• Decision Date: 23 October 1990
• Citation: 563 N.E.2d 274,76 N.Y.2d 595,561 N.Y.S.2d 903
• Parties: , 563 N.E.2d 274 The PEOPLE of the State of New York, Respondent, v. Anthony GORDON, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 903

561 N.Y.S.2d 903

76 N.Y.2d 595, 563 N.E.2d 274

The PEOPLE of the State of New York, Respondent, v. Anthony GORDON, Appellant.

Court of Appeals of New York.

Oct. 23, 1990.

[76 N.Y.2d 596] Barbara Zolot and Philip L. Weinstein, for appellant.

Robert T. Johnson, Dist. Atty. (Stanley R. Kaplan and [76 N.Y.2d 597] Peter D. Coddington, of counsel), for respondent.

OPINION OF THE COURT

BELLACOSA, Judge.

This appeal from an Appellate Division order, 150 A.D.2d 990, 542 N.Y.S.2d 1001, affirming a conviction of criminal sale and possession of drugs, turns on the admissibility of a station house showup identification by an undercover police officer. The Court is unanimous that the undercover officer's December 7, 1984 showup identification of defendant as a participant in a drug sale on November 27, 1984 is irredeemably suggestive and must be suppressed. It is significantly different from the confirmatory type of showup identification by a trained undercover police officer which was circumscribed but allowed in People v. Wharton, 74 N.Y.2d 921, 550 N.Y.S.2d 260, 549 N.E.2d 462. We therefore reverse, vacate the judgment of conviction, and remit for further proceedings on the indictments. In that connection, if the prosecution intends to provide in-court identification of defendant by the officer at a new trial, the identification must be scrutinized at a Wade hearing to be sure it is free of taint and dependent on an independent source (United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; see also, People v. Adams, 53 N.Y.2d 241, 251, 440 N.Y.S.2d 902, 423 N.E.2d 379). Finally, the evidence of defendant's guilt of narcotics possessory crimes on December 7, 1984 is sufficient under our standard review test, giving the People, as we must, every favorable interpretation since they persuaded a jury as a matter of fact, beyond a reasonable doubt, that defendant exercised a knowing dominion and control over the drugs.

On November 27, 1984, an undercover police officer, in the course of a drug buy operation, encountered defendant in a Bronx alleyway. Defendant asked if she wanted "coke" and directed her to knock on the door of a nearby house if she did. The undercover officer knocked, was admitted to an apartment, and told the occupants that she wanted to buy some cocaine. Before the buy was completed, defendant also knocked on the door, was admitted, and warned the occupants that the police were outside. The officer completed the buy and defendant told her that she would like the "good stuff". She left the house and radioed her backup team that the buy was complete, but gave no descriptions of any of the participants. No arrests were made at that time.

The police subsequently secured a "no-knock" search warrant for the apartment. The same undercover officer returned to the apartment at approximately 5:25 p.m. on December 7, 1984 to attempt another buy. This time she encountered two men, neither of whom were present in the apartment during the earlier transaction. She made the buy, left the area, and radioed descriptions of the two men and the circumstances of the buy to her backup unit. She did not see defendant in or near the apartment on December 7. Other officers, armed with the warrant and the radioed confirmation, then entered the apartment. A detective observed defendant and two other individuals, a man and a woman, standing on a staircase in an alcove in the apartment. Defendant and the man, who was clutching a black bag, were about one foot apart. Defendant pointed a gun at the detective but dropped it at the detective's command. The defendant and four other occupants of the apartment were arrested. The black bag contained cocaine. A search of the apartment disclosed more drugs and drug paraphernalia in an enclosed area under the stairs where defendant had been standing.

At 11:00 p.m. that evening at the station house, through a one-way mirror, the undercover officer viewed defendant for the first time since November 27; she also viewed the two men who had participated in the December 7 buy. All three men were handcuffed together. She identified the two men from the December 7 buy and then identified defendant as one of the persons she saw at the apartment in the course of the November 27 buy. There is no indication in the record, other than sparse, inconclusive references presented at trial, of any conversations before, during, or after the showup among the officers, especially with respect to the undercover officer's identification of defendant.

Defendant's pretrial motion for a Wade hearing was denied. At trial, the undercover officer was permitted to testify concerning her station house showup identification of the defendant as a participant in the November 27 transaction. She also identified him in court. The jury convicted him of sale of a controlled substance in the third degree in connection with the November 27 buy, and third and fourth degree possession of a controlled substance and possession of marihuana in the second degree in connection with the December 7 buy. The Appellate Division affirmed, without opinion.

The root of our analysis takes us back to United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, supra, where the Supreme Court, recognizing that "risks of suggestion attend" pretrial lineups and showups and "increase the dangers inhering in eyewitness identification" (id., at 229, 87 S.Ct. at 1933), held essentially that identification evidence may be inadmissible unless scrutinized for freedom from suggestiveness.

In People v. Adams, 53 N.Y.2d 241, 440 N.Y.S.2d 902, 423 N.E.2d 379, supra and People v. Riley and People v. Rodriguez, 70 N.Y.2d 523, 522 N.Y.S.2d 842, 517 N.E.2d 520, involving civilian showup identifications at a police precinct, we added that evidence of such inherently suggestive pretrial showup identifications had to be suppressed except in exigent circumstances.

The prior showup identification of defendant in this case by the undercover officer suffers from all the forbidden attributes of suggestiveness that led to suppression in the sampling of pertinent cases just noted. The defendant here was never seen by the officer during the December 7 buy. When she viewed him on December 7, he was handcuffed to the two men from whom she had just made a criminal purchase several hours earlier. The three alleged perpetrators were being held at the station house alone in a room into which the officer peered to make the identifications. We know nothing definitive of the police conversations with the officer which preceded or attended the showup. Not without significance, too, is the 10-day lapse between the November 27 buy and the December 7 showup--a factor not present in Adams, Riley or Rodriguez. The factors here heighten the real danger of calculated or careless misidentification.

Our analysis must also include consideration of cases acknowledging the significance of the expertise of police officers as trained identifying agents. Unlike People v. Gissendanner, 48 N.Y.2d 543, 423 N.Y.S.2d 893, 399 N.E.2d 924, where the suggestiveness concern was deemed neutralized because the police officer who identified the defendant had two contacts with the defendant before the commission of the crime, the identifying witness and the suspect here were not previously known to each other--the undercover officer had never seen defendant prior to the November 27 buy and did not see him again until the December 7 showup.

Likewise, the fact that the identifying witness in this case is a trained undercover police officer who made the prior drug purchase with defendant's participation cannot, by itself, overcome the extreme features of suggestiveness present in this case. Thus, the subsequent showup does not qualify for exceptional treatment under People v. Morales, 37 N.Y.2d 262, 372 N.Y.S.2d 25, 333 N.E.2d 339 or People v. Wharton, 74 N.Y.2d 921, 550 N.Y.S.2d 260, 549 N.E.2d 462, supra. In Morales, we held not unduly suggestive a follow-up station house showup identification of a suspect by a trained and experienced undercover narcotics officer six hours after a buy-and-bust of the suspect. In that case, the officer had identified the suspect on the street immediately after the buy. We concluded that under those circumstances, the station house viewing was a confirmation that the right person had been arrested and was "actually 'consistent with good police work' " (37 N.Y.2d, supra, at 272, 372 N.Y.S.2d...