People v. Graham
| Decision Date | 28 March 2001 |
| Citation | 725 N.Y.S.2d 145,283 AD2d 885 |
| Parties | (A.D. 3 Dept. 2001) THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v JASON GRAHAM, Also Known as REALITY, Appellant. 11759 79572 : THIRD JUDICIAL DEPARTMENT Calendar Date: |
| Court | New York Supreme Court — Appellate Division |
Thomas Marcelle, Slingerlands, for appellant.
Paul A. Clyne, District Attorney (Christopher D. Horn of counsel), Albany, for respondent.
Before: Cardona, P.J., Crew III, Peters, Spain and Lahtinen, JJ.
Appeals (1) from a judgment of the County Court of Albany County (Breslin, J.), rendered March 13, 1997, upon a verdict convicting defendant of the crime of murder in the second degree, and (2) by permission, from an order of said court, entered April 3, 2000, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction.
After a jury trial in early 1997, defendant was convicted of intentional second degree murder for the shooting death of Demere Hannah on the afternoon of August 22, 1995 in front of 50 Lark Street in the City of Albany. At trial, eyewitnesses testified that defendant was observed firing a gun at Hannah out of the front passenger-side window of a light brown Honda vehicle being driven by defendant's nephew, Lee Johnson. Johnson then backed up the vehicle and defendant was observed shooting Hannah several more times. A passing taxi driver who observed the shooting reported the Honda's license plate number to the Albany police and it was determined that the vehicle, later recovered was owned by Johnson's mother and regularly driven by Johnson.
Wayne Blanchard and Aleek Young testified at trial that they had observed defendant shoot Hannah out of the passenger side of the vehicle. Blanchard testified that he knew Hannah and Johnson from the neighborhood and he had known defendant approximately 10 to 15 years prior to the shooting; he first contacted police approximately seven months after the shooting -- in March 1996 while incarcerated on a parole violation -- and negotiated an agreement to testify at trial in exchange for his release to a long-term residential program. Young testified that, shortly before the shooting, he saw defendant -- whom he knew from the streets -- and Johnson at a nearby store, observed defendant flash a gun and threaten, "I'm going to get one of those Mecc Niggers [a derogatory term referring to African Americans from New York City]." Young agreed to testify at trial in exchange for a deal in which his May 1996 guilty plea to possession of a loaded gun and one-year sentence imposed thereon also satisfied a July 1996 charge of criminal possession of a controlled substance in the third degree.
Also testifying at trial was Jerome Walker, who testified that at approximately 6:00 P.M. on the day of the murder, he, defendant and a mutual friend1 had a conversation at a softball field in which defendant admitted that he shot Hannah from a vehicle being driven by Johnson; defendant later directed a woman to retrieve the gun from his apartment and discussed discarding it. Karim Maye, another witness, testified that two days before the shooting, defendant came to his house and asked for a gun stating that his nephew, Johnson, had been shot in the foot at a local club; Maye told defendant that he did not have a gun, but when he saw defendant later that day at a basketball court, defendant told him that he had obtained what he needed, he knew it was Hannah who had shot Johnson and he was going to "take care of business". The only defense witness called to testify also observed that the shooter was on the front passenger side of the vehicle, but identified Johnson as the shooter.
Defendant now appeals from the judgment convicting him of murder in the second degree and sentencing him to 25 years to life in prison and, by permission, from the denial of his motion to vacate the judgment of conviction and for a new trial based upon, inter alia, newly discovered evidence and ineffective assistance of counsel. We affirm in all respects.
Defendant's initial contention is that his CPL 710.20 (6) pretrial motion to suppress Blanchard's in-court identification of him at trial should have been granted on the ground that Blanchard's identification of him prior to trial from a single photograph was unconstitutionally suggestive. County Court conducted a pretrial hearing on the motion at which the People requested that the court invoke the "confirmatory identification" exception -- a conclusion that, as a matter of law, Blanchard was "so familiar with the defendant that there is 'little or no risk' that police suggestion could lead to a misidentification" -- obviating the need for a Wade hearing to explore the suggestiveness of the identification procedures utilized (People v Rodriguez, 79 N.Y.2d 445, 450). Notably, "whether the exception applies depends on the extent of the prior relationship, which is necessarily a question of degree" (id., at 450).
In this case, as relevant to this issue, an Albany police detective testified at the suppression hearing that, during a March 20, 1996 prison interview, Blanchard reported that he had seen defendant shoot Hannah several times from the passenger side of the vehicle driven by Johnson; Hannah fell to the ground and the vehicle then backed up and defendant fired seven or eight more shots at Hannah. Blanchard also provided the street names for Hannah, Johnson and defendant and stated that he had known defendant "over ten years" and that defendant is related to Johnson. Moreover, Blanchard stated that he had been in jail with defendant, apparently after the shooting, and while in jail defendant was telling everyone to call him by a different street name to disassociate himself from this murder. Blanchard's written statement, given to police during the prison interview, indicating that he had known defendant for over 10 years and had been incarcerated with him was received into evidence at the suppression hearing. The detective also testified that on April 23, 1996, while Blanchard was in an interview room to testify before the Grand Jury, Blanchard was shown a single photograph of defendant and asked if it was "Reality" (defendant's street name), the person that he saw shoot Hannah, to which Blanchard replied "yes".
County Court denied defendant's motion to suppress concluding that since Blanchard had previously and without suggestion provided defendant's name and street name, indicated that he knew defendant and Hannah, and stated that he had observed the shooting, the People had established Blanchard's "basis of knowledge", and showing him one picture was not unconstitutionally suggestive. Although the court needlessly focused, in part, on the suggestiveness of the procedure, the record supports the conclusion that the court's ruling invoked the Rodriguez exception. Analytically, a Rodriguez "confirmatory identification" ruling is that however suggestive or unfair the identification might be, "there is virtually no possibility that the witness could misidentify the defendant" (id., at 450).
Indeed, the People bear the burden of demonstrating that an identification procedure was merely confirmatory (see, id., at 452), an exception which is "narrowly confined" since its invocation obviates the need for CPL 710.30 notice or a Wade hearing (see, People v Gissendanner, 48 N.Y.2d 543, 552). Although the People are not obligated to call the identifying witness at a Rodriquez hearing (see, People v Espinal, 262 A.D.2d 245, lv denied 93 N.Y.2d 1017) but recognizing that defendant's right to call the identifying witness at the hearing is limited (see, People v Chipp, 75 N.Y.2d 327, 337-339, cert denied 498 US 833), the People must develop at the hearing sufficient details of the extent and degree of the protagonists' prior relationship, their encounters, and how they knew one another, so as to provide the trial court with a basis for ruling, as a matter of law, that the witness was impervious to suggestion (see, People v Rodriguez, supra, at 451).
Here, we find that the uncontroverted, albeit limited, evidence adduced at the hearing was sufficient to establish that defendant and Blanchard were "long-time acquaintances" (see, People v Collins, 60 N.Y.2d 214, 219; People v Tas, 51 N.Y.2d 915, 916), whose prior relationship was not "fleeting and distant" (People v Collins, supra, at 219) or the result of a brief encounter (see, People v Newball, 76 N.Y.2d 587, 591-592). Consequently, as a matter of law, Blanchard was "impervious to police suggestion" in the subsequent photo identification (People v Rodriguez, supra, at 452).
Defendant's related claim raised in his CPL 440.10 motion to set aside the judgment is that the People's failure to provide him -- prior to the suppression hearing -- with Blanchard's history of criminal convictions or "rap sheet" constituted a Brady violation. Defendant argued that this evidence demonstrates that Blanchard had been incarcerated for most of the time between 1977 and the 1995 murder, a fact which undermined the People's proof presented at the hearing that Blanchard knew defendant for 10 years prior to the murder, and affected the outcome of the hearing. County Court denied the motion, concluding that since Blanchard did not testify at the suppression hearing, his rap sheet could not have been used for impeachment purposes at that hearing and, further, the rap sheet was not Brady material in that it did not negate a long-term...
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