People v. Smith

• Decision Date: 26 November 2014
• Docket Number: 105210
• Citation: 997 N.Y.S.2d 534,2014 N.Y. Slip Op. 08268,122 A.D.3d 1162
• Parties: The PEOPLE of the State of New York, Respondent, v. Rahsaan K. SMITH, Appellant.
• Court: New York Supreme Court — Appellate Division

122 A.D.3d 1162
997 N.Y.S.2d 534
2014 N.Y. Slip Op. 08268

The PEOPLE of the State of New York, Respondent
v.
Rahsaan K. SMITH, Appellant.

105210

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

Nov. 26, 2014.

997 N.Y.S.2d 534

Linda B. Johnson, West Sand Lake, for appellant.

997 N.Y.S.2d 535

Gerald F. Mollen, District Attorney, Binghamton (Joshua S. Shapiro of counsel), for respondent.

Before: LAHTINEN, J.P., STEIN, McCARTHY, ROSE and CLARK, JJ.

Opinion

CLARK, J.

122 A.D.3d 1162

Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered July 2, 2012, convicting defendant upon his plea of guilty of the crime of criminal possession of a forged instrument in the second degree.

In July 2011, defendant was indicted on five counts of criminal possession of a controlled substance in the third degree and five counts of criminal possession of a forged instrument in the second degree stemming from defendant's alleged use of forged prescriptions to obtain oxycodone at three different pharmacies in Broome County. Defendant thereafter pleaded guilty to one count of criminal possession of a forged instrument in the second degree in full satisfaction of the indictment and was sentenced as a second felony offender to a prison term of 2 to 4 years. Defendant now appeals arguing that County Court erred as a matter of law in denying his motion to suppress his identification as the perpetrator of the alleged crimes on the

122 A.D.3d 1163

ground that the pretrial identification procedure used by police, a photo array, was unduly suggestive. Upon our review of the photo array and suppression testimony, we affirm.

Initially, a pretrial identification that is unduly suggestive violates due process and is therefore inadmissible against the defendant (see People v. Chipp, 75 N.Y.2d 327, 335, 553 N.Y.S.2d 72, 552 N.E.2d 608 [1990], cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70 [1990] ). In this regard, a photo array is unduly suggestive if it “depicts a unique characteristic which draws the viewer's attention so as to indicate that the police have selected a particular individual” (People v. Parker, 257 A.D.2d 693, 694, 684 N.Y.S.2d 300 [1999], lvs. denied 93 N.Y.2d 1015, 697 N.Y.S.2d 574, 719 N.E.2d 935 [1999], 93 N.Y.2d 1024, 697 N.Y.S.2d 583, 719 N.E.2d 944 [1999] ; see People v. Muniz, 93 A.D.3d 871, 872–873, 939 N.Y.S.2d 181 [2012], lv. denied 19 N.Y.3d 965, 950 N.Y.S.2d 117, 973 N.E.2d 215 [2012] ; People v. Colon, 24 A.D.3d 1114, 1115, 805 N.Y.S.2d 744 [2005], lv. denied 6 N.Y.3d 811, 812 N.Y.S.2d 450, 845 N.E.2d 1281 [2006] ). “While the People have the initial burden of going forward to establish the reasonableness of the police conduct and the lack of any undue suggestiveness in a pretrial identification procedure, it is the defendant who bears the 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 [citation omitted] ). Where suggestiveness is shown, it is the People's burden to demonstrate the existence of an independent source by clear and convincing evidence (see People v. Adams, 53 N.Y.2d 241, 251, 440 N.Y.S.2d 902, 423 N.E.2d 379 [1981] ; People v. Bianca, 91 A.D.3d 1127, 1128, 936 N.Y.S.2d 743 [2012], lv. denied 19 N.Y.3d 862, 947 N.Y.S.2d 411, 970 N.E.2d 434 [2012] ).

Finding that the People met their initial burden to establish that the police conduct was reasonable and their procedure was not unduly suggestive, we turn to defendant's ultimate burden. Here, Tricia Ceurter, Michael Perhach and Daniel Smith, three employees of the pharmacies that received the forged prescriptions, were each separately shown a photo array approximately one week following defendant's attempt to fill such prescriptions. The array depicts six individuals of equivalent age and ethnicity who are reasonably similar in appearance. However, we nonetheless find the array to be unduly suggestive

997 N.Y.S.2d 536

to the extent that defendant's photo draws the viewer's immediate attention. Specifically, while the other five photos depict individuals from the shoulders up with the upper portion of their photos consisting of nothing more than a blank, gray...