People v. Ramirez

• Decision Date: 03 March 1995
• Docket Number: K-10
• Citation: 164 Misc.2d 342,624 N.Y.S.2d 552
• Parties: The PEOPLE of the State of New York v. Anna RAMIREZ, Defendant
• Court: New York Supreme Court

Page 552

624 N.Y.S.2d 552

164 Misc.2d 342

The PEOPLE of the State of New York v. Anna RAMIREZ, Defendant.

Supreme Court, Criminal Term,

Queens County, Part K-10.

March 3, 1995.

Robert M. Baum by Nathaniel Welkes, Legal Aid Society, Kew Gardens, for defendant.

Richard A. Brown, Dist. Atty., Queens County by John W. Kosinski, Asst. Dist. Atty., Kew Gardens, for People.

PHYLLIS ORLIKOFF FLUG, Justice.

The defendant was indicted for Criminal Sale of a Controlled Substance in the Third Degree.

She was arraigned on the charges in Part AA-1 on October 28, 1994. At the arraignment, the People served a CPL § 710.30(1)(b) notice which contained notification of an identification in the following manner:

"Confirmatory I.D. by U/C # 7430 on 9/23/94."

The defendant has moved for an order precluding identification testimony by the undercover police officer on the ground that the 710.30 notice served was deficient under the holding of People v. Lopez, 84 N.Y.2d 425, 618 N.Y.S.2d 879, 643 N.E.2d 501 [1994]. In that case the Court of Appeals held that "... the People were (also) required to inform defendant of the time, place and manner in which the identification was made." The notice herein does not state the place and manner in which the identification was made other than to state that it was confirmatory (in nature).

The Court would be constrained to preclude the identification testimony if the witness were a private citizen. However, since the defendant does not dispute that the identification was made by a trained undercover officer who observed the defendant during a face-to-face drug transaction, knowing that the defendant would shortly be arrested, the defendant is not entitled to a 710.30 notice (People v. Newball, 158 A.D.2d 553, 551 N.Y.S.2d 324 [2nd Dept., 1990]. The service of the ineffective notice by the People was gratuitous but not fatal.

Finally, where, as here, the viewing consists of a confirmatory identification by an undercover officer, and when the nature and circumstances of the encounter and identification do not warrant it, the defendant is not entitled to a Wade hearing (People v. Wharton, 74 N.Y.2d 921, 923, 550 N.Y.S.2d 260, 549 N.E.2d 462 [1989].

In view of the foregoing, the motion to preclude is denied.