People v. Sanchez

• Decision Date: 22 July 2010
• Citation: 905 N.Y.S.2d 692,75 A.D.3d 911
• Parties: The PEOPLE of the State of New York, Respondent, v. David SANCHEZ, Appellant.
• Court: New York Supreme Court — Appellate Division

905 N.Y.S.2d 692
75 A.D.3d 911

The PEOPLE of the State of New York, Respondent,
v.
David SANCHEZ, Appellant.

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

July 22, 2010.

905 N.Y.S.2d 693

G. Scott Walling, Queensbury, for appellant.

Gerald F. Mollen, District Attorney, Binghamton (Torrance L. Schmitz of counsel), for respondent.

Before: CARDONA, P.J., PETERS, SPAIN, McCARTHY and EGAN JR., JJ.

EGAN JR., J.

75 A.D.3d 911

Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered September 5, 2008, upon a verdict convicting defendant of the crimes of murder in the second degree and criminal possession of a weapon in the second degree.

On the evening of May 30, 2007, the victim was sitting in his

75 A.D.3d 912

friend Megan Adams' parked vehicle on Stuyvesant Street in the City of Binghamton, Broome County when four individuals-two males and two females-approached the car by foot. The victim exited the car, spoke to the group, and a brief verbal altercation occurred between the victim and one of the men. The victim returned to the car, and Adams drove the vehicle a short way down Stuyvesant Street and parked. Approximately one hour later, while the victim was conversing with several friends outside the parked vehicle, a man rode up to the vehicle on a bicycle, got off and fired two shots, one of which hit the vehicle and the other struck the victim in the chest, inflicting a fatal wound. The shooter then fled the scene on foot. Following a jury trial, defendant was convicted as charged of murder in the second degree (hereinafter count 1) and criminal possession of a weapon in the second degree (hereinafter count 2). Defendant was thereafter sentenced to concurrent prison terms of 25 years to life

905 N.Y.S.2d 694

for his conviction of count 1 and 15 years for his conviction of count 2, with five years of postrelease supervision. Defendant now appeals.

Initially, we are unpersuaded that County Court erred in determining that Derrick Watson's identification of defendant from a police photo array as the shooter was merely confirmatory, thus obviating the need for a Wade hearing. A Wade hearing may be summarily denied "when the witness is so familiar with the defendant that there is little or no risk that police suggestion could lead to a misidentification" ( People v. Carter, 57 A.D.3d 1017, 868 N.Y.S.2d 378 [2008] [internal quotation marks and citations omitted], lvs. denied 12 N.Y.3d 781, 879 N.Y.S.2d 57, 58, 906 N.E.2d 1091, 1092 [2009]; see People v. Rodriguez, 79 N.Y.2d 445, 450, 583 N.Y.S.2d 814, 593 N.E.2d 268 [1992]; People v. Allah, 57 A.D.3d 1115, 1116, 868 N.Y.S.2d 822 [2008], lv. denied 12 N.Y.3d 780, 879 N.Y.S.2d 57, 906 N.E.2d 1091 [2009] ). This type of confirmatory identification exception to the notice and hearing requirements for suggestive pretrial identification "may be confidently applied where the [identifying witness is a] family member[ ], friend[ ] or acquaintance[ ] or [has] lived [with the defendant] for a time" ( People v. Rodriguez, 79 N.Y.2d at 450, 583 N.Y.S.2d 814, 593 N.E.2d 268). It is the People's burden to prove the witness's sufficient familiarity with the defendant at a Rodriguez hearing ( see People v. Rodriguez, 79 N.Y.2d at 452, 583 N.Y.S.2d 814, 593 N.E.2d 268; People v. Graham, 283 A.D.2d 885, 887, 725 N.Y.S.2d 145 [2001], lv. denied 96 N.Y.2d 940, 733 N.Y.S.2d 379, 759 N.E.2d 378 [2001] ). Factors to be considered include the number of times the witness saw the defendant prior to the crime, the duration and nature of those encounters, time periods and setting of the viewings, time between the last viewing and the crime, and whether the two individuals had any conversations ( see People v. Rodriguez, 79 N.Y.2d at 451, 583...