People v. Wheeler

• Decision Date: 29 January 2015
• Citation: 2 N.Y.S.3d 663,124 A.D.3d 1136,2015 N.Y. Slip Op. 00657
• Parties: The PEOPLE of the State of New York, Respondent, v. Karlyle WHEELER, Appellant.
• Court: New York Supreme Court — Appellate Division

124 A.D.3d 1136

2 N.Y.S.3d 663

2015 N.Y. Slip Op. 00657

The PEOPLE of the State of New York, Respondent

v.Karlyle WHEELER, Appellant.

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

Jan. 29, 2015.

Cliff Gordon, Monticello, for appellant.

D. Holley Carnright, Kingston (Joshua Harris Povill of counsel), for respondent.

Before: McCARTHY, J.P., GARRY, LYNCH and CLARK, JJ., concur.

Opinion

McCARTHY, J.P.

Appeal from a judgment of the County Court of Ulster County(Williams, J.), rendered October 3, 2012, upon a verdict convicting defendant of the crimes of criminal possession of a controlled substance in the third degree (two counts) and criminal sale of a controlled substance in the third degree (two counts).

Defendant was indicted on two counts of criminal possession of a controlled substance in the third degree and two counts of criminal sale of a controlled substance in the third degree after he sold cocaine to an undercover police officer on two occasions on the same date.Following trial, the jury found him guilty of all counts.County Court sentenced him, as a second felony drug offender whose prior felony conviction was a violent felony, to an aggregate term of 15 years in prison, followed by three years of postrelease supervision.Defendant appeals.

County Court did not err in denying defendant's Batson challenge.

Defendant contended that the People were exercising their peremptory challenges in a discriminatory manner because they struck the only two remaining black members of the panel, after one black individual was removed on consent.The People then offered race-neutral reasons for their challenges.As to one juror, who was a college student at Harvard, the prosecutor stated that it was his practice to generally exclude students from juries.The other excluded individual was a student studying video game design.The prosecutor stated that this juror was challenged because he was a student, he wore his hair in long braids and people with long hair were often viewed as rebellious, and the prosecutor preferred potential jurors later in the panel so he challenged several people in a row, including the black male.The court credited the People's reasons as nonpretextual, noting that the prosecutor had exercised peremptory challenges on studentsin other trials, and five out of six students in the jury panel were removed that day.A party may exclude jurors for physical traits such as long hair (see e.g.Purkett v. Elem,514 U.S. 765, 769, 115 S.Ct. 1769, 131 L.Ed.2d 834[1995];People v. Richie,217 A.D.2d 84, 88, 635 N.Y.S.2d 263[1995], lv. denied88 N.Y.2d 940, 647 N.Y.S.2d 174, 670 N.E.2d 458[1996] ).The record also supports the prosecutor's statement about desiring to reach potential jurors later on the list, as several white jurors seated next to the black male were also removed through peremptory challenges.Thus, we will not disturb County Court's findings accepting the People's reasons as nonpretextual (seePeople v. Lee,80 A.D.3d 877, 879–880, 914 N.Y.S.2d 415[2011], lvs. denied16 N.Y.3d 832, 921 N.Y.S.2d 197, 946 N.E.2d 185[2011], 16 N.Y.3d 833, 921 N.Y.S.2d 197, 946 N.E.2d 185[2011], 16 N.Y.3d 834, 921 N.Y.S.2d 198, 946 N.E.2d 186[2011];People v. Knowles,79 A.D.3d 16, 21–22, 911 N.Y.S.2d 483[2010], lv. denied16 N.Y.3d 896, 926 N.Y.S.2d 32, 949 N.E.2d 980[2011] ).

County Court did not err in permitting the undercover officer to identify defendant at trial.After holding a Wharton hearing, the court found that the undercover officer's pretrial identification of defendant was confirmatory and, therefore, not unduly suggestive.¹As the Court of Appeals held in People v. Wharton,74 N.Y.2d 921, 550 N.Y.S.2d 260, 549 N.E.2d 462(1989), a pretrial identification is merely confirmatory where an undercover officer observed the defendant firsthand during a planned drug transaction and made the identification “at a place and time sufficiently connected and contemporaneous to the arrest itself as to constitute the ordinary and proper completion of an integral police procedure”(id. at 922–923, 550 N.Y.S.2d 260, 549 N.E.2d 462;seePeople v. Roberts,79 N.Y.2d 964, 966, 582 N.Y.S.2d 996, 591 N.E.2d 1182[1992];People v. Nguyen,90 A.D.3d 1330, 1334, 935 N.Y.S.2d 195[2011], lv. denied18 N.Y.3d 960, 944 N.Y.S.2d 489, 967 N.E.2d 714[2012] ).As in that case, here the undercover officer's participation in the drug transaction with this particular individual “was planned, and [the officer] was experienced and expected to observe carefully the defendant for purposes of later identification and for completion of his official duties”(People v. Wharton,74 N.Y.2d at 923, 550 N.Y.S.2d 260, 549 N.E.2d 462;comparePeople v. Allah,57 A.D.3d 1115, 1116–1117, 868 N.Y.S.2d 822[2008], lv. denied12 N.Y.3d 780, 879 N.Y.S.2d 57, 906 N.E.2d 1091[2009] ).While this exception is generally utilized in “buy and bust” situations, the same reasoning applies to permit a confirmatory identification that is conducted contemporaneously to the drug transaction itself, whether the suspect is arrested immediately or not (seePeople v. Banks,242 A.D.2d 726, 727, 663 N.Y.S.2d 46[1997], lv. denied91 N.Y.2d 868, 668 N.Y.S.2d 567, 691 N.E.2d 639[1997] ).Single photograph identifications are generally considered suggestive, but they are permitted as confirmatory if conducted within a short time after an officer's personal observation of a defendant during a planned drug sale (seePeople v. Smith,293 A.D.2d 764, 765, 741 N.Y.S.2d 448[2002], lv. denied98 N.Y.2d 713, 749 N.Y.S.2d 11, 778 N.E.2d 562[2002];People v. Banks,242 A.D.2d at 727, 663 N.Y.S.2d 46;People v. Miles,219 A.D.2d 685, 686–687, 631 N.Y.S.2d 727[1995], lvs. denied87 N.Y.2d 905, 641 N.Y.S.2d 234, 663 N.E.2d 1264[1995], 88 N.Y.2d 968, 647 N.Y.S.2d 722, 670 N.E.2d 1354[1996];comparePeople v. Fulton,223 A.D.2d 932, 932–933, 636 N.Y.S.2d 924[1996];People v. Munroe,185 A.D.2d 530, 530–532, 586 N.Y.S.2d 420[1992] ).

Here, the undercover officer testified that he saw defendant for about one minute during the first drug sale, outside in daylight at a distance of about four feet.During the second sale, the officer saw defendant for about 15 seconds, at the same distance and in the same lighting conditions.The officer was shown a single picture of defendant 10 minutes after the second sale.Defendant was arrested approximately seven months after the drug sales.As the identification here was connected to and contemporaneous with the drug transaction, it qualified as merely confirmatory, to assure that the police would arrest the proper person.In any event, the undercover officer's observation of defendant for more than a minute in broad daylight at a close distance constituted an independent basis for permitting his in-court identification of defendant(seePeople v. Parker,257 A.D.2d 693, 694–695, 684 N.Y.S.2d 300[1999], lvs. denied93 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];People v. Brown,217 A.D.2d 797, 798, 629 N.Y.S.2d 824[1995], lv. denied86 N.Y.2d 872, 635 N.Y.S.2d 953, 659 N.E.2d 776[1995] ).While proof of a pretrial identification is not permitted as part of the People's case-in-chief, here such evidence was brought out by the defense in an effort to discredit the officer's identification of defendant.

Defendant received the effective assistance of counsel.To prevail on his argument of ineffective assistance, defendant had to prove that his counsel failed to provide meaningful representation, including proving that she lacked any strategic or other legitimate explanations for the alleged errors (seePeople v. Baker,14 N.Y.3d 266, 270–271, 899 N.Y.S.2d 733, 926 N.E.2d 240[2010] ).Defendant contends that his counsel erred by failing to call his brother as a witness.Despite defendant's testimony that his brother would testify that he—and not defendant—was present at the time of the drug sales at issue, the record does not necessarily support his assertion.Outside the presence of the jury, defendant's counsel informed County Court that she had talked to the brother recently, but his story was inconsistent and he had stopped returning counsel's calls.Defense counsel also felt that the brother would not testify, but would invoke his Fifth Amendment right not to...