People v. Pacquette

• Decision Date: 30 June 2015
• Docket Number: No. 118,118
• Citation: 25 N.Y.3d 575,35 N.E.3d 845,2015 N.Y. Slip Op. 05595,14 N.Y.S.3d 775
• Parties: The PEOPLE of the State of New York, Respondent, v. Dean PACQUETTE, Appellant.
• Court: New York Court of Appeals Court of Appeals

25 N.Y.3d 575

35 N.E.3d 845

14 N.Y.S.3d 775

2015 N.Y. Slip Op. 05595

The PEOPLE of the State of New York, Respondent

v.Dean PACQUETTE, Appellant.

No. 118

Court of Appeals of New York.

June 30, 2015.

Robert S. Dean, Center for Appellate Litigation, New York City (Carl S. Kaplan of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York City (Brian R. Pouliot and Martin J. Foncello of counsel), for respondent.

OPINION OF THE COURT

PIGOTT, J.

This appeal requires us to decide whether the People may be excused from their statutory requirement to notify a defendant, within 15 days of his arraignment, of their intention to offer at trial the testimony of a police officer who had previously identified him during a pretrial procedure (see CPL 710.30 ). We hold that the People were required to abide by the statutory notice requirement and therefore the court erred in allowing the officer to testify at trial relative to his identification of defendant. However, we find such error harmless.

I.

On May 17, 2007, at 12:45 a.m. , police officers from the Manhattan South Narcotics Division were conducting a coordinated drug enforcement effort in the vicinity of Washington Square Park. Pursuant to this assignment, an undercover officer equipped with $200 in prerecorded buy money purchased crack cocaine from a man present at the corner of West 4th Street and Sixth Avenue. An additional officer, Detective Vanacore, who was surveying the transaction from his vantage point across the street (approximately 40 feet away), communicated his observations to a backup unit.

Upon completion of the sale, Detective Vanacore communicated with the backup unit, indicating that the drug transaction was complete and identifying the seller as a “male black who was tall, wore a light-colored hooded sweatshirt and

a dark baseball hat.” Within minutes, the backup unit approached the site of the transaction and the subject fled. Detective Vanacore left the scene in order to assist in the apprehension of an additional suspect. Defendant was subsequently arrested by the backup unit. Upon return to his original post, Detective Vanacore observed defendant in the custody of the backup unit and communicated to the arresting officer that defendant was the person he had observed with the undercover officer. Upon searching defendant, officers recovered $20 in prerecorded buy money.

Prior to trial, defendant was served with a CPL 710.30 notice pertaining to the undercover officer's pretrial identification. Defendant moved to suppress that identification testimony on the ground that showup identifications are inherently suggestive. Following a pretrial hearing, the motion court denied defendant's motion, holding that the undercover officer's out-of-court identification was confirmatory and therefore admissible.

At trial, during the People's opening statement, the prosecutor informed the jury that it would hear testimony from not only the undercover officer, but also Detective Vanacore, who, along with the undercover officer, viewed defendant shortly after the transaction and confirmed that the backup unit arrested the correct person. Defendant moved to preclude Detective Vanacore's prospective testimony, arguing that the People had not provided him with notice concerning Detective Vanacore's identification testimony. Following a mid-trial hearing, the court determined that Detective Vanacore's identification was confirmatory in nature and therefore admissible without the need for notice. Defendant was convicted of criminal sale of a controlled substance in the third degree.

On appeal, the Appellate Division affirmed the conviction, holding that Detective Vanacore's identification of defendant “was confirmatory and thus did not require CPL 710.30(1)(b) notice” (112 A.D.3d 405, 405, 975 N.Y.S.2d 669 [1st Dept.2013] ). A Judge of this Court granted defendant leave to appeal (23 N.Y.3d 1023, 992 N.Y.S.2d 806, 16 N.E.3d 1286 [2014] ). We now affirm, albeit on a different ground.

II.

“CPL 710.30 could not be clearer” (People v. Boyer, 6 N.Y.3d 427, 431, 813 N.Y.S.2d 31, 846 N.E.2d 461 [2006] ). When the People intend to offer at trial “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 as such,” the statute requires the People to notify the defense of such intention within 15 days after arraignment and before trial (CPL 710.30[1] [b] ). Not only is “[t]he statutory mandate ... plain” but the procedure is “simple” (Boyer, 6 N.Y.3d at 431, 813 N.Y.S.2d 31, 846 N.E.2d 461 ). The People serve their notice upon defendant, the defendant has an opportunity to move to suppress and the court may hold a Wade hearing (see id. ). If the People fail to provide notice, the prosecution may be precluded from introducing such evidence at trial.

The notice statute was “a legislative response to the problem of suggestive and misleading pretrial identification procedures” (People v. Gissendanner, 48 N.Y.2d 543, 552, 423 N.Y.S.2d 893, 399 N.E.2d 924 [1979] ). In enacting the notice requirement, the legislature “attempt[ed] to deal effectively with the reality that not all police-arranged identifications are free from unconstitutional taint” (People v. Newball, 76 N.Y.2d 587, 590, 561 N.Y.S.2d 898, 563 N.E.2d 269 [1990] ).

The purpose of the notice requirement is twofold: it provides the defense with “an opportunity, prior to trial, to investigate the circumstances of the [evidence procured by the state] and prepare the defense accordingly” and “permits an orderly hearing and determination of the issue of the fact ... thereby preventing the interruption of trial to challenge initially the admission into evidence of the [identification]” (People v. Briggs, 38 N.Y.2d 319, 323, 379 N.Y.S.2d 779, 342 N.E.2d 557 [1975] ). Thus, the statute contemplates “pretrial resolution of the admissibility of identification testimony where it is alleged that an improper procedure occurred” (People v. Rodriguez, 79 N.Y.2d 445, 452, 583 N.Y.S.2d 814, 593 N.E.2d 268 [1992] ). “If no notice is given before trial, the purposes of the statute may be defeated” (Briggs, 38 N.Y.2d at 323, 379 N.Y.S.2d 779, 342 N.E.2d 557 ).

The People, relying on our decision in People v. Wharton, 74 N.Y.2d 921, 550 N.Y.S.2d 260, 549 N.E.2d 462 (1989), argue that the trial court properly...