People v. Jackson

• Decision Date: 20 January 1994
• Parties: The PEOPLE of the State of New York, Respondent, v. Bernard H. JACKSON, Also Known as "B", Appellant.
• Court: New York Supreme Court — Appellate Division

Page 147

607 N.Y.S.2d 147

200 A.D.2d 856

The PEOPLE of the State of New York, Respondent, v. Bernard H. JACKSON, Also Known as "B", Appellant.

Supreme Court, Appellate Division,

Third Department.

Jan. 20, 1994.

Richard J. Haas, Swan Lake, for appellant.

Stephen F. Lungen, Dist. Atty. (Bonnie M. Mitzner, of counsel), Monticello, for respondent.

Before MIKOLL, J.P., and MERCURE, CREW, CASEY and YESAWICH, JJ.

YESAWICH, Justice.

Appeal from a judgment of the County Court of Sullivan County (Kane, J.), rendered February 24, 1992, upon a verdict convicting defendant of the crime of criminal sale of a controlled substance in the third degree.

On November 8, 1992 Louis Roman, an undercover investigator with the State Police, purchased three vials of cocaine from a person identified as "B" while at the Evergreen Apartments in the Village of Monticello, Sullivan County. After completing the transaction, which had been recorded by means of a transmitter, Roman and his partner, Jeffrey Cabrara, returned to the "staging area" of the investigation, where they met with their backup team, to whom they described "B" as being a black male, approximately 5'10" or 5'11" tall, with a medium build and a mustache, and wearing black corduroy pants with brown pockets. Village of Monticello Detective Thomas O'Connor, a member of the backup team who knew defendant from prior contact, and knew that the transaction had taken place outside of defendant's apartment, then drove by the scene, where he saw defendant dressed in the manner described by Roman. He obtained a photograph of defendant from the station house and returned to the staging area, where Roman acknowledged that the person in the photograph was indeed "B".

Defendant was not arrested until a week later, at which time Roman again identified him, in a station house showup, as "B". County Court granted defendant's motion for a Wade hearing and ultimately determined that the showup would be suppressed as unnecessarily suggestive, that the photo identification was merely confirmatory and that an in-court identification would be permitted. After a jury trial at which Roman identified defendant as the person from whom he had purchased the cocaine, and during which tape-recorded evidence of the transaction was admitted over defendant's objection, defendant was convicted of criminal sale of a controlled substance in the third degree. He was sentenced as a second felony offender to an indeterminate term of incarceration of 6 1/2 to 13 years. Defendant appeals.

We reject defendant's contention that the photo identification was impermissibly suggestive and not confirmatory in nature, and that therefore County Court erred in allowing an in-court identification. The procedure followed here was virtually identical to that utilized in People v. Freeman, 176 A.D.2d 1090, 575 N.Y.S.2d 724. Roman's detailed description of "B" was consistent with defendant's appearance and the photo identification itself was made less than 40 minutes after the face-to-face transaction. The fact that O'Connor returned immediately to the scene substantially reduced the possibility that he, and thus Roman, identified the wrong person (see, People v. Roberts, 79 N.Y.2d 964, 966, 582 N.Y.S.2d 996, 591 N.E.2d 1182). In all, we find no reason to disturb County Court's findings regarding the admissibility of the People's in-court identification evidence.

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