People v. Matthews

• Decision Date: 20 December 2012
• Court: New York Supreme Court — Appellate Division
• Parties: The PEOPLE of the State of New York, Respondent, v. Reginald K. MATTHEWS, Also Known as True, Appellant.

101 A.D.3d 1363
956 N.Y.S.2d 317
2012 N.Y. Slip Op. 08826

The PEOPLE of the State of New York, Respondent,
v.
Reginald K. MATTHEWS, Also Known as True, Appellant.

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

Dec. 20, 2012.

[956 N.Y.S.2d 319]

G. Scott Walling, Queensbury, for appellant, and appellant pro se.

Kevin C. Kortright, District Attorney, Fort Edward (Michael R. Stern of counsel), for respondent.

Before: ROSE, J.P., LAHTINEN, SPAIN, KAVANAGH and McCARTHY, JJ.

SPAIN, J.

[101 A.D.3d 1363]Appeals (1) from a judgment of the County Court of Washington County (McKeighan, J.), rendered January 14, 2011, upon a verdict convicting defendant of the crimes of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and (2) by permission, from an order of said court, entered October 26, 2011, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

According to the testimony adduced at defendant's trial, on June 3, 2010, as part of a law enforcement drug task force investigation, a confidential informant (hereinafter CI) called defendant, who she knew by his street name True, and arranged in recorded conversations to make a controlled purchase of one gram of cocaine for the agreed-upon amount of $100, at a designated location, an intersection in the Village of Hudson Falls, Washington County. The CI knew defendant from prior meetings and phone conversations. At the designated location, defendant arrived seated in a rear seat of a van driven by Jason Nassivera, who exited the van and sold a substance later determined to be cocaine to the CI for the agreed-upon amount. Surveillance officers observed and overheard the transaction. Nassivera, who the CI had never met, testified that he drove to that location in his van, sold cocaine provided by and as directed by defendant, and immediately gave the proceeds to defendant. Defendant testified, denying being present at or involved with the sale or knowing Nassivera, and raised a mistaken identity defense. A jury found defendant guilty of third degree criminal sale and possession of a controlled substance. Upon the verdict, defendant was sentenced as a second felony offender to concurrent[101 A.D.3d 1364]prison terms of 10 years, followed by three years of postrelease supervision. Defendant's subsequent motion to vacate the judgment of conviction was denied.

Initially, defendant argues that County Court erred as a matter of law in denying his motion, after a Wade hearing, to suppress the CI's identification of him on the ground that the pretrial identification procedure used by police, a photo array, was unduly suggestive. Upon review of the photo array and suppression testimony, we conclude that the People met their “initial burden of going forward to establish the reasonableness of the police conduct and the lack of any undue suggestiveness in [the] pretrial identification procedure”

[956 N.Y.S.2d 320]

( People v. Chipp, 75 N.Y.2d 327, 335, 553 N.Y.S.2d 72, 552 N.E.2d 608 [1990],cert. denied498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70 [1990];see People v. Lawal, 73 A.D.3d 1287, 1287–1288, 900 N.Y.S.2d 515 [2010] ). Further, defendant did not meet his “ultimate burden of proving that the procedure was unduly suggestive” ( People v. Chipp, 75 N.Y.2d at 335, 553 N.Y.S.2d 72, 552 N.E.2d 608).

The detective who showed the CI the photo array testified that it was assembled using computer generated images from the police department computer. He told the CI that the actual target may or may not be in the array, and the CI identified the picture of defendant “in a matter of seconds.” The photo array contains six color, close-up photographs with similar backgrounds of black males, all with the same general facial features and short cut hair and of a seemingly similar age; five, including defendant, are wearing a T-shirt, all but one have a skin tone that appears similar to that of defendant, and five of the six, including defendant, have similar facial hair.

There is no requirement that the fill-in photographs depict people “nearly identical [to defendant's photograph]” ( People v. Chipp, 75 N.Y.2d at 336, 553 N.Y.S.2d 72, 552 N.E.2d 608;see People v. Lind, 20 A.D.3d 765, 767, 798 N.Y.S.2d 574 [2005],lv. denied5 N.Y.3d 830, 804 N.Y.S.2d 44, 837 N.E.2d 743 [2005] ). The physical characteristics of the people included in the array are sufficiently similar and the variations were not such as “to create a substantial likelihood that the defendant would be singled out for identification” ( People v. Chipp, 75 N.Y.2d at 336, 553 N.Y.S.2d 72, 552 N.E.2d 608;People v. McDonald, 306 A.D.2d 696, 697, 760 N.Y.S.2d 373 [2003] ). We are not persuaded by defendant's claim that the array was rendered unduly suggestive because he is the only one looking down or because it appears that the size of defendant's image had been reduced, elongating his face. In our view, these characteristics were not unduly suggestive so as to “draw[ ] the viewer's attention in such a way as to indicate that the police have made a particular selection” ( People v. Yousef, 8 A.D.3d 820, 821, 778 N.Y.S.2d 326 [2004],lv. denied3 N.Y.3d 743, 786 N.Y.S.2d 822, 820 N.E.2d 301 [2004] [internal quotation marks and citations omitted]; see People v. Lawal, 73 A.D.3d at 1288, 900 N.Y.S.2d 515;People v....