People v. Houze

• Decision Date: 27 November 2019
• Docket Number: 109585
• Citation: 115 N.Y.S.3d 141,177 A.D.3d 1184
• Parties: The PEOPLE of the State of New York, Respondent, v. Andrew HOUZE, Appellant.
• Court: New York Supreme Court — Appellate Division

177 A.D.3d 1184

115 N.Y.S.3d 141

The PEOPLE of the State of New York, Respondent,

v.Andrew HOUZE, Appellant.

109585

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

Decided and Entered: November 27, 2019

Calendar Date: October 17, 2019

Danielle Neroni Reilly, Albany, for appellant.

P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent.

Before: Garry, P.J., Clark, Mulvey, Aarons and Pritzker, JJ.

MEMORANDUM AND ORDER

Pritzker, J. Appeal from a judgment of the Supreme Court (Breslin, J.), rendered May 18, 2017 in Albany County, upon a verdict convicting defendant of the crimes of burglary in the second degree, criminal possession of a weapon in the third degree and criminal possession of a controlled substance in the seventh degree.

On January 25, 2017, while out running a quick errand, Victor Cain noticed a suspicious looking man – later identified as defendant – walking near a community garden in his neighborhood, carrying two large duffle bags and wearing a black leather jacket. After running his errand, Cain's wife informed him that the home of the victim – Cain's neighbor – had been broken into. Cain briefly met with the victim to show the victim where defendant had been walking, and then proceeded to see if he could locate defendant. Cain found defendant a few blocks away boarding a bus and holding only one duffle bag. Cain followed the bus and contacted the victim to meet him at the location where defendant exited the bus. Once the victim arrived, he and Cain confronted defendant, who pulled out what appeared to be a gun, causing Cain and the victim to retreat to their vehicles. While the victim drove home, Cain continued to observe defendant enter a nearby home. On his way to report the incident to police, Cain flagged down two detectives and explained that defendant had just brandished a gun. The detectives followed Cain to where defendant was last seen, and, when they arrived, defendant was leaving the apartment without any duffle bags. Cain then told the detectives that defendant was the man who brandished the weapon, and defendant was then arrested and taken into custody. While arresting defendant, police recovered, among other things, an electronic stun gun, cocaine and some of the proceeds of the burglary.

Defendant was subsequently indicted for the crimes of burglary in the second degree, criminal possession of a weapon in the third degree and criminal possession of a controlled substance in the seventh degree. After a jury trial, defendant was convicted as charged and was thereafter sentenced, as a persistent violent felony offender, to a prison term of 22 years to life on the burglary in the second degree conviction and to lesser concurrent prison terms on the other two convictions. Defendant appeals, and we affirm.

We turn first to defendant's contention that Supreme Court erred in denying his motion to preclude identification testimony pursuant to CPL 710.30(2) because the People failed to provide him with sufficient notice of the identification. " CPL 710.30 requires the People to serve notice upon the defendant of their intention to introduce ‘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] as such’ " ( People v. Anderson, 149 A.D.3d 1407, 1410, 54 N.Y.S.3d 176 [2017], lv denied 30 N.Y.3d 947, 67 N.Y.S.3d 130, 89 N.E.3d 520 [2017], quoting CPL 710.30[1][b] ). "The notice requirement applies to police-arranged identifications, and its purpose is to allow the defense an opportunity to inquire into whether misleading or suggestive procedures were used that could affect the accuracy of a later identification in court" ( People v. Russell, 167 A.D.3d 1326, 1327, 90 N.Y.S.3d 385 [2018] [internal quotation marks and citations omitted], lv denied 33 N.Y.3d 981, 101 N.Y.S.3d 252, 124 N.E.3d 741 [2019] ; see People v. Boyer, 6 N.Y.3d 427, 431, 813 N.Y.S.2d 31, 846 N.E.2d 461 [2006] ).

Here, the People, at arraignment, served defendant with a written notice stating their intention to offer at trial, among other things, evidence of an identification of defendant as the person who committed the crimes "by a witness who ha[d] previously identified [him] as such."

The notice did not specify what type of identification procedure had taken place and, as for the date and place of the identification, the notice stated, "See attached." The attached supplemental report provided the details of the identification, including the date and time of the identification. Defendant moved to preclude the identification testimony and a Wade hearing was held. At the hearing, Timothy Haggerty, a police detective, testified that he and another detective were on their way to get coffee when Cain, who was known to Haggarty, flagged them down and informed them that he was just threatened by a man with a gun. According to Haggarty, Cain made no mention of the burglary at this time and Haggarty and the other detective followed him to where the man was last seen. As Haggarty, the other detective and Cain approached the home, defendant was exiting the apartment and Cain, without provocation, pointed at defendant and identified him as the man who pulled the gun on him stating, "There he is. He's right there." Haggarty testified that he then arrested defendant. Following the hearing, Supreme Court denied defendant's motion.

Inasmuch as Cain's identification of defendant "occurred spontaneously without any police involvement, CPL 710.30 notice of such identification was not required" ( People v. Coker, 121 A.D.3d 1305, 1307, 995 N.Y.S.2d 288 [2014], lv denied 26 N.Y.3d 927, 17 N.Y.S.3d 90, 38 N.E.3d 836 [2015] ; see People v. Rawlinson, 170 A.D.3d 1425, 1428–1429, 97 N.Y.S.3d 319 [2019], lv denied 33 N.Y.3d 1107, 106 N.Y.S.3d 687, 130 N.E.3d 1297 [2019] ). Additionally, "notice of an eyewitness identification is not required ‘where the eyewitness has not previously made any out-of-court, police-initiated identification of the defendant in connection with that crime ’ " ( People v. Anderson, 149 A.D.3d at 1410–1411, 54 N.Y.S.3d 176, quoting People v. Butler, 16 A.D.3d 915, 916, 791 N.Y.S.2d 723 [2005], lv denied 5 N.Y.3d 786, 801 N.Y.S.2d 807, 835 N.E.2d 667 [2005] ). According to Haggerty's testimony, at the time that Cain identified defendant, it was only in connection with defendant threatening him with a gun, not the burglary, as the burglary had not even been reported yet; thus, CPL 710.30 notice was not required. Therefore, Supreme Court properly denied defendant's motion to preclude Cain's identification testimony.

Defendant also challenges Supreme Court's Sandoval ruling. However, because defendant failed to object to the court's ruling prior to the close of the Sandoval hearing, this issue is not preserved for our review (see People v. Nunez, 160 A.D.3d 1225, 1225, 75 N.Y.S.3d 336 [2018] ; People v. Stacconi, 151 A.D.3d 1395, 1397, 58 N.Y.S.3d 201 [2017] ). Defendant's contention that the court erred in allowing the People to amend the indictment prior to jury selection is similarly unpreserved inasmuch as defendant did not oppose, and in fact consented to, the People's motion to amend (see People v. Lamont, 125 A.D.3d 1106, 1106, 1 N.Y.S.3d 870 [2015], lvs denied 26 N.Y.3d 967, 969, 18 N.Y.S.3d 603, 605, 40 N.E.3d 581, 583 [2015]; People v. Wimberly, 86 A.D.3d 806, 807, 927 N.Y.S.2d 229 [2011], lv denied 18 N.Y.3d 863, 938 N.Y.S.2d 870, 962 N.E.2d 295 [2011] ).¹

Defendant also claims that reversal is required due to the People's failure to turn over Rosario material, which also constituted a Brady violation. Specifically, defendant argues that the People failed to disclose (1) text messages between two police officers, (2) a call ticket, which noted the times that the officers arrived and left the victim's residence, and (3) initial notes made by Kristin Pulcher, a police officer involved in the investigation. Although the People concede that they failed to turn these items over and that said failure is a Rosario violation, they point out that defendant never requested an adverse inference charge or any other sanction during trial and that defendant was not prejudiced by the violations. As relevant here, "[a] Rosario violation will lead to reversal only if there is a reasonable possibility that nondisclosure contributed to the verdict" ( People v. Seecoomar, 174 A.D.3d 1154, 1158, 105 N.Y.S.3d 188 [2019] [internal quotation marks and citations omitted] ). Additionally, "to establish a Brady violation, a defendant must show that (1) the evidence is favorable to the defendant because it is either exculpatory or impeaching in nature; (2) the evidence was suppressed by the prosecution; and (3) prejudice arose because the suppressed evidence was material" ( People v. Fuentes, 12 N.Y.3d 259, 263, 879 N.Y.S.2d 373, 907 N.E.2d 286 [2009] ; see People v. Auleta, 82 A.D.3d 1417, 1420, 919 N.Y.S.2d 222 [2011], lv denied 17 N.Y.3d 813, 929 N.Y.S.2d 801, 954 N.E.2d 92 [2011] ).

As to the text messages between the two police officers, both officers testified at trial and explained that pictures were sent from one officer to another without any accompanying text. At trial, defendant conceded that the People had disclosed the pictures early on in discovery. As such, defendant was not prejudiced because he already had the relevant information. As to the nondisclosure of Pulcher's initial notes, testimony at trial established that the notes were memorialized into her incident report. Defendant was in receipt of the incident report and extensively cross-examined Pulcher about the contents of that report; accordingly, defendant was not prejudiced by this nondisclosure (see People v. Olson, 126 A.D.3d 1139, 1141, 6 N.Y.S.3d 160 [2015], lv denied 25 N.Y.3d 1169, 15 N.Y.S.3d 300, 36 N.E.3d 103 [2015] ). As to the call...