People v. Wray

• Decision Date: 18 March 1996
• Parties: The PEOPLE, etc., Respondent, v. Raymond WRAY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 122

640 N.Y.S.2d 122

225 A.D.2d 718

The PEOPLE, etc., Respondent, v. Raymond WRAY, Appellant.

Supreme Court, Appellate Division,

Second Department.

March 18, 1996.

Russell C. Morea, Kew Gardens, for appellant.

Richard A. Brown, District Attorney, Kew Gardens (Steven J. Chananie, John M. Castellano, and Jennifer L. Naiburg, of counsel), for respondent.

Before THOMPSON, J.P., and COPERTINO, HART and GOLDSTEIN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Flaherty, J.), rendered May 22, 1992, convicting him of robbery in the first degree (two counts), criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification evidence.

ORDERED that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15[5] ).

There is no merit to the defendant's contention that the court erred by conducting the Wade hearing after opening statements were made, since the defendant "impliedly consented to the irregular procedure" (People v. Melendez, 141 A.D.2d 860, 861, 530 N.Y.S.2d 202; People v. Persaud, 218 A.D.2d 756, 630 N.Y.S.2d 949; see also, People v. Orkabi, 160 A.D.2d 644, 559 N.Y.S.2d 261; cf., People v. Correa, 200 A.D.2d 415, 608 N.Y.S.2d 802). Although the defense counsel had requested a Wade hearing prior to trial, he registered no objection to the timing of the hearing when it was commenced. Rather, the defense counsel permitted the court to conduct the entire hearing and then belatedly objected only after the proceedings were completed. By failing to register an objection at a time when the court was in a position to fashion an appropriate remedy, the defense counsel impliedly consented to the timing of the hearing (see, People v. Correa, supra; People v. Melendez, supra, at 861, 530 N.Y.S.2d 202).

In any event, the defendant's claim that he sustained prejudice due to the timing of the hearing is unpersuasive (see, People v. Gonzalez, 214 A.D.2d 451, 625 N.Y.S.2d 203 [1st Dept., 1995]; People v. Jones, 203 A.D.2d 183, 612 N.Y.S.2d 849). The defendant argues, inter alia, that at the Wade hearing, one of the prosecution's witnesses was unable to identify him as the perpetrator and that the defense counsel was therefore unable to utilize this testimony in his opening statement. However, the witness's hearing testimony regarding his inability to identify the defendant was repeated in detail at trial and the defense counsel was able to vigorously argue this fact to the jury in summation. Notably, there was nothing in the defense counsel's opening statement which prevented him from later exploiting, to the fullest extent, any weaknesses or inconsistencies which subsequently arose in the People's identification evidence. Under these circumstances, the fact that the defense counsel did not specifically mention the witness's hearing testimony in his opening did not in any way inhibit him from later presenting the most effective theory of misidentification which the evidence would support.

Further, although the court did err in admitting the showup testimony of witness Craig Williams, any error was harmless. Notably, Williams was not only unable to identify the defendant as the perpetrator at trial, he was also unable to testify that the person he viewed during the showup was the defendant.

The court's denial of the defendant's request for a transcript of the Wade hearing was not improper, as the defendant's request was untimely (see, Matter of Eric W., 68 N.Y.2d 633, 505 N.Y.S.2d 60, 496 N.E.2d 219).

We have examined the defendant's remaining contentions and find them to be without merit.

THOMPSON, J.P., COPERTINO and HART, JJ., concur.

GOLDSTEIN, J., dissents, and votes to reverse the judgment appealed from, to grant that branch of the defendant's omnibus motion which was to suppress the showup identification of the complainant's companion, and to order a new trial, with the following memorandum:

According to the complainant, on November 25, 1990, at around midnight, he and a companion were approached by three men in front of a bar. One of the men held a gun to the complainant's stomach and demanded his coat. The complainant complied, and the perpetrators went into the bar.

The robbery was witnessed by two police officers from the rooftop of a building across the street from the bar. The police officers only saw two men approach the complainant and his companion. One of the officers testified that the gunman passed the gun to his accomplice and went into the bar. The other officer went into the bar and "pulled [the defendant] through the crowd". The complainant's leather coat was found on the floor inside.

Both the complainant and his companion later identified the defendant at the precinct in one-on-one showups. The District Attorney's voluntary disclosure form stated that the identifications occurred at the scene and there were no showups.

Prior to the commencement of the trial, the defense counsel asked for a Wade hearing on the admissibility of identification testimony. He claimed that he had not asked for a Wade hearing earlier because the voluntary disclosure form "indicates only identification at the scene, nothing about * * * a showup". The application was denied, on the ground that the defendant's former attorney had waived a Wade hearing on condition that the People not introduce any evidence of pretrial identifications.

Nonetheless, after the trial had commenced, and the defense counsel had made an opening statement, the trial court conducted a Wade hearing. At that hearing, the complainant made an in-court identification of the defendant, but his companion stated that the defendant was not one of the perpetrators. At the conclusion of the Wade hearing, which lasted less than two days, the defense counsel contended that "the entire proceeding is invalid in light of the fact that the jury has already been sworn and opening arguments have already been made. * * * I certainly would have not opened in the manner I did had I had some of the testimony that I had at this so-called hearing". The trial court denied that application.

The trial court then ruled on the admissibility of the identification testimony. It suppressed the complainant's showup identification as unduly suggestive, but ruled that his companion's showup identification, which the District Attorney previously agreed not to admit in evidence, was admissible under CPL 60.25.

Then the defendant moved for a mistrial, on the ground that he would have given a different opening statement if he had known the information elicited at the Wade hearing. The trial court denied the application, stating as its reason that the defense counsel "knew full well as we began the case, selected the jury and opened to them * * * that there was a Wade hearing in progress", and made no objection. However, the trial record demonstrates that the defendant did in fact raise an objection: he sought a Wade hearing prior to jury selection, but his request was denied at that time.

In response to the trial court's charge that he had failed to object to an...