People v. Shortell

• Citation: 155 A.D.3d 1442,66 N.Y.S.3d 69
• Decision Date: 30 November 2017
• Docket Number: 107725
• Parties: The PEOPLE of the State of New York, Respondent, v. Kevin A. SHORTELL, Appellant.
• Court: New York Supreme Court — Appellate Division

155 A.D.3d 1442
66 N.Y.S.3d 69

The PEOPLE of the State of New York, Respondent,
v.
Kevin A. SHORTELL, Appellant.

107725

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

Calendar Date: October 10, 2017
Decided and Entered: November 30, 2017

66 N.Y.S.3d 71

Adam G. Parisi, Schenectady, for appellant.

66 N.Y.S.3d 72

Andrew J. Wylie, District Attorney, Plattsburgh (Jeffrey C. Stitt of counsel), for respondent.

Before: Peters, P.J., Garry, Mulvey, Aarons and Pritzker, JJ.

MEMORANDUM AND ORDER

Pritzker, J.

Appeal from a judgment of the County Court of Clinton County (Ryan, J.), rendered May 5, 2015, upon a verdict convicting defendant of the crimes of criminal sale of a controlled substance in the third degree (three counts) and criminal possession of a controlled substance in the third degree (three counts).

Following three drug transactions with two confidential informants (hereinafter the CIs), defendant was arrested and charged with three counts of criminal sale of a controlled substance in the third degree and three counts of criminal possession of a controlled substance in the third degree. After a jury trial, defendant was convicted of all counts and sentenced, as a second felony offender, to an aggregate prison term of 18 years followed by nine years of postrelease supervision. Defendant now appeals.

Defendant contends that County Court erred in permitting the first CI to identify him at trial, arguing that an unduly suggestive pretrial identification procedure tainted the CI's subsequent identification of defendant. As an initial matter, it appears from the record that County Court simultaneously conducted both Rodriguez and Wade hearings regarding the pretrial identification procedure. We agree with defendant that because Suzanne Ewing, an investigator who testified at the hearing, knew no specifics regarding the CI's prior encounters with defendant and did not specify the number of prior contacts that they had with one another, the People did not sufficiently prove, under the standard to be employed at a Rodriguez hearing, that the police procedure was confirmatory in nature (see People v. Casanova, 119 A.D.3d 976, 980, 988 N.Y.S.2d 713 [2014] ; People v. Coleman, 306 A.D.2d 549, 551, 760 N.Y.S.2d 263 [2003] ).

Notwithstanding, a CPL 710.30 notice was filed in this case and a Wade hearing was also conducted (compare People v. Casanova, 119 A.D.3d at 980, 988 N.Y.S.2d 713 ; People v. Coleman, 306 A.D.2d at 551, 760 N.Y.S.2d 263 ), during which information establishing an independent basis for the first CI's in-court identification of defendant was revealed. Therefore, even though it was improper for Ewing to show the first CI a single photograph of defendant prior to the second controlled buy, this CI gave an accurate description of defendant shortly after the controlled buy on December 4, 2013, prior to being shown the photograph, thereby demonstrating the accuracy of his identification independent of any police procedure. Additionally, the first CI was the individual who suggested defendant as the target of the controlled buy, thereby further demonstrating his familiarity with defendant. Moreover, the CI had face-to-face contact with defendant during the controlled buys; therefore, the People established that the first CI had an independent basis to identify defendant, untainted by the impermissible identification procedure and independent of any prior contacts with defendant (see People v. Stevens, 87 A.D.3d 754, 756, 928 N.Y.S.2d 146 [2011], lvs. denied 18 N.Y.3d 861, 938 N.Y.S.2d 869, 962 N.E.2d 294 [2011] ; People v. Hall, 57 A.D.3d 1222, 1224–1225, 870 N.Y.S.2d 508 [2008], lv. denied 12 N.Y.3d 817, 881 N.Y.S.2d 24, 908 N.E.2d 932 [2009] ;

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People v. Rockwell, 18 A.D.3d 969, 969–970, 794 N.Y.S.2d 726 [2005], lv. denied 5 N.Y.3d 768, 801 N.Y.S.2d 262, 834 N.E.2d 1272 [2005] ). We also find that, given the first CI's testimony regarding the controlled buys and his prior knowledge of defendant, the investigator's corroboration of defendant's identity as the supplier, testimony of the second CI regarding her controlled buy and the in-court identification of defendant by the second CI, the proof of defendant's guilt was overwhelming and any error in admitting the first CI's identification of defendant was harmless (see People v. Harris, 80 N.Y.2d 796, 798, 587 N.Y.S.2d 277, 599 N.E.2d 681 [1992] ; People v. Hall, 57 A.D.3d at 1225, 870 N.Y.S.2d 508 ).

Defendant also argues that County Court erred in permitting the People to introduce a private Facebook message in which he made a threat to the second CI, claiming a lack of foundation. "A recorded conversation—such as a printed copy of the content of a set of cell phone instant messages—may be authenticated through, among other methods, the ‘testimony of a participant in the conversation that it is a complete and accurate reproduction of the conversation and has not been altered’ " ( Matter of Colby II. [Sheba II.], 145 A.D.3d 1271, 1273, 43 N.Y.S.3d 587 [2016], quoting People v. Agudelo, 96 A.D.3d 611, 611, 947 N.Y.S.2d 96 [2012], lv. denied 20 N.Y.3d 1095, 965 N.Y.S.2d 791, 988 N.E.2d 529 [2013] ). "The credibility of the authenticating witness and any motive [he or] she may have had to alter the evidence go to the weight to be accorded this evidence, rather than its admissibility" ( People v. Agudelo, 96 A.D.3d at 611, 947 N.Y.S.2d 96 [citation omitted] ). Here, the second CI had been Facebook friends with defendant for two years prior to trial and stated that she knew the message came from defendant's account because an icon of defendant's picture was displayed next to it. She also testified that she had firsthand knowledge of the content of the Facebook message, therefore, she was an appropriate witness to authenticate the message (see id. at 612, 947 N.Y.S.2d 96 ). Additionally, the Facebook message was sufficiently authenticated by the second CI as she explained that the copy shown to her—the same copy that was ultimately admitted as an exhibit at trial—accurately depicted the message that defendant had sent to her (see Matter of Colby II. [Sheba II.], 145 A.D.3d at 1273, 43 N.Y.S.3d 587 ).

Defendant further argues that the content of the Facebook message was inadmissible Molineux evidence. Although the message does constitute evidence of prior bad acts (see People v. Washington, 306 A.D.2d 701, 702, 761 N.Y.S.2d 377 [2003], lv. denied 100 N.Y.2d 600, 766 N.Y.S.2d 176, 798 N.E.2d 360 [2003] ; People v. Maddox, 272 A.D.2d 884, 885, 708 N.Y.S.2d 769 [2000], lv. denied 95 N.Y.2d 867, 715 N.Y.S.2d 222, 738 N.E.2d 370 [2000] ), the message is probative of defendant's identity and of his consciousness of guilt (see People v. McCommons, 143 A.D.3d 1150, 1154, 40 N.Y.S.3d 578 [2016], lvs. denied 29 N.Y.3d 999, 1001, 57 N.Y.S.3d 720, 80 N.E.3d 413 [2017] ; People v. Peele, 73 A.D.3d 1219, 1221, 900 N.Y.S.2d 776 [2010], lvs. denied 15 N.Y.3d 893, 894, 912 N.Y.S.2d 582, 938 N.E.2d 1017 [2010] ). However, the record reflects that County Court failed to engage in an analysis of whether the probative value of such evidence outweighed its potential for undue prejudice (see People v. Lindsey, 75 A.D.3d 906, 908, 906 N.Y.S.2d 161 [2010], lv. denied 15 N.Y.3d 922, 913 N.Y.S.2d 649, 939 N.E.2d 815 [2010] ; People v. Wright, 5 A.D.3d 873, 876, 773 N.Y.S.2d 486 [2004], lv. denied 3 N.Y.3d 651, 782 N.Y.S.2d 422, 816 N.E.2d 212 [2004] ). Nonetheless, because the evidence

66 N.Y.S.3d 74

against defendant was overwhelming, this error was harmless (see People v. Kalina, 149 A.D.3d 1264, 1267, 52 N.Y.S.3d 523 [2017], lv. denied 29 N.Y.3d 1092, 63 N.Y.S.3d 9, 85 N.E.3d 104 [2017] ; People v. Scaringe, 137 A.D.3d 1409, 1417–1418, 27 N.Y.S.3d 712 [2016], lv. denied 28 N.Y.3d 936, 40 N.Y.S.3d 364, 63 N.E.3d 84 [2016] ).

As to defendant's contention that County Court erred in failing to give a limiting instruction...