People v. Roberts

OPINION OF THE COURT

Sullivan, J.

On appeal from his conviction of two counts each of criminal sale and criminal possession of a controlled substance in the third degree arising out of two separate sales of cocaine to an undercover officer, defendant argues, inter alia, that the trial court erred in admitting evidence of the undercover officer’s station-house identification of him, the constitutionality of which, he contends, the People failed to prove.

The facts are not in dispute. At 3:40 p.m. on March 26, 1987, Police Officer Louis Prince, a five-year veteran of the New York City Police Department, who had made an estimated 150 undercover purchases of narcotics, purchased a quantity of cocaine for $50 from defendant inside apartment 2C at 505 West 164th Street in Manhattan. Officer Prince had been led to the apartment by a man, later referred to as J.D. Eddie, whom he had met outside the building. Defendant, described by Officer Prince as a black man, with a dark complexion, approximately six feet tall, and 40 years of age with a salt and pepper afro, answered the door and, after looking Prince "up and down”, asked J.D. Eddie, "Is he all right?” When Eddie nodded, Prince and Eddie were allowed into the apartment. Eddie led the others into a small room off the kitchen, estimated as 20 by 20 feet in dimension, containing a bed and dresser. Once inside, defendant asked Prince, "[WJhat you need?”, to which the officer replied, "[L]et me get one gram of coke for 50.” Defendant said, "[Ojkay”. J.D. Eddie then reached into a dresser drawer and withdrew a clear plastic bag containing a white rock substance. Using a playing card, Eddie scooped a portion of the white substance out of the bag and placed it on a scale. Eddie weighed the substance, wrapped it in tinfoil and handed it to Prince, who took out $50 and, after displaying some concern as to whom he should pay, handed it to Eddie. Defendant said, "[IJts all right. We are all family. I am Chief, and that’s Eddie.”

During the entire transaction, which took three minutes, defendant stood one foot from Prince, who spent the time watching J.D. Eddie weighing and packaging the drugs and "glancing” at defendant, watching Prince from his position by the doorway. Although Prince did not see anyone else, he heard others talking from somewhere within the apartment. Prince was then escorted out of the apartment.

Prince immediately returned to his car and radioed his back-up team that he had made a buy. He did not relay any description of defendant or Eddie at that time. About three hours later, after vouchering the narcotics, Prince filled out a buy report, describing defendant, whom he referred to as J.D. Chief, as a "black male, dark complexion, approximately six feet, approximately 40 years, mustache, salt and pepper large afro, approximately 150 pounds, wearing a T-shirt and blue jeans.” On the basis of this buy, the police obtained a warrant to search the West 164th Street apartment. The application contained the description of J.D. Chief which Prince had included in his buy report.

One week later, on April 2, 1987, at about 6:25 p.m., Prince returned to 505 West 164th Street, again encountering J.D. Eddie in front of the building. Eddie took Prince to the same apartment. Defendant answered the knock on the door. Defendant and Eddie led Prince into the same back room off the kitchen. Once inside, defendant asked Prince, "[WJhat you want?” Prince requested one gram of coke for $50. Defendant said, "[Ojkay”. Eddie withdrew a plastic bag containing a white powder from the dresser drawer and weighed a portion of it. Defendant then picked up a piece of tinfoil from the top of the dresser, wrapped the white substance on the scale in it and handed the package to Prince, who handed him $50. At the time, Prince and defendant were face-to-face. Defendant then led Prince out of the apartment. The entire episode spanned three minutes; the narcotics transaction was consummated in approximately lVz to 2 minutes. As in the earlier transaction one week before, Prince heard other voices within the apartment but did not see anyone. Prince described defendant on this second occasion as a dark-complected black man about 6-feet tall, in his 40’s, with a salt and pepper afro, wearing a red warm-up top with a white stripe down the sleeves. Prince could not recall whether defendant had a beard on April 2nd.

After leaving the apartment, Prince returned to his car and radioed his back-up team, who were assigned to execute a search warrant at the 505 West 164th Street apartment and were awaiting the go-ahead from him. Prince told them the "buy had gone down” and that the principals were the same two men as the week before. He described defendant and Eddie and the location where he had seen the drugs. Within 4 or 5 minutes of receiving this radio transmission, the back-up team arrived at the apartment, announced their presence, rammed down the apartment door and entered. Defendant, wearing a red sweatshirt, was arrested in the kitchen. Also arrested were Betty Johnson, a resident of the apartment, found seated in a chair, holding a child, between the kitchen and bedroom, and three other occupants, one man and two women, found in the living room. The man, Edward Johnson, was a black man, approximately 5-feet 7-inches tall, 150 pounds and about 30 years of age. He was clean-shaven, had black hair of normal length and wore a light shade sweatshirt; defendant, it should be noted, was older and taller.

During the four-hour search of the apartment which followed, six persons who came to the apartment to purchase drugs were arrested and charged with criminal trespass. Aside from the apartment door, a window and fire escape were the only means of exit from the apartment. The officers recovered three plastic bags containing a white substance, later determined to be cocaine, from the top drawer of the dresser in the small room off the kitchen. This was the same drawer from which Prince saw defendant and J.D. Eddie remove the drugs they had sold him on both occasions.

In the interim, defendant and the other occupants of apartment 2C were taken to the 26th precinct. In defendant’s arrest report, based on information he provided, he was listed as 38 years of age, 5-feet 11-inches tall and 180 pounds. Since it was "common procedure,” Prince was notified to report to the station house to view the suspects arrested at the apartment. At about 11:10 p.m., Prince, who did not see defendant at the station house before viewing him as part of the identification procedure, identified him as the seller to whom he referred as J.D. Chief. The four other persons—three women and one man, Edward Johnson—were also viewed by Prince in the same lineup procedure.

Afterwards, between 11:20 and 11:50 p.m., Prince filled out a buy report for the transaction earlier that evening in apartment 2C. He estimated defendant’s weight at 150 pounds and described his clothing as a red warm-up suit with white stripes. A photograph of defendant taken at the time of his April 2nd arrest shows him with a beard and wearing a red warm-up shirt with blue stripes. As Prince testified, his buy-report descriptions of defendant did not necessarily reflect "every detail” of his appearance; rather, they contain "things that would make [him] recall the person as well as what took place.” At trial, Prince identified defendant as the man referred to as J.D. Chief, from whom he twice purchased cocaine inside apartment 2C, although he appeared a "little bit heavier” at trial. He also testified to his station-house identification of defendant on the night of the arrest.

At the Wade hearing, Prince testified that defendant and his unapprehended accomplice, J.D. Eddie, sold him cocaine on March 26 and April 2, 1987 inside the apartment in question. He described the face-to-face encounters with defendant, which, on each occasion, lasted at least three minutes. Approximately AVi hours after the second buy, he was asked to make a station-house viewing of those arrested inside the apartment for the purpose of identification. Prince recalled viewing defendant and at least three others, whose physical characteristics he could not remember. Neither defendant nor any of the individuals with him were handcuffed during the identification procedure. Officer Prince testified that he immediately identified defendant as the seller referred to as J.D. Chief.

The hearing court ruled that the circumstances of the identification were such as to make it one of "inherent reliability”. The court took into account the fact that the identification was based on two encounters with the same person on two different occasions, the undercover officer’s "training and background” and the "relatively minimal passage of time” between the second of the two transactions and the identification. Accordingly, the motion to suppress the station-house identification of defendant was denied.

In arguing that the court erred in admitting at trial evidence of Prince’s station-house identification of him, defendant claims specifically that the People, by not adducing evidence of the physical characteristics of the four others who stood beside him at the identification procedure, failed to meet their initial burden of going forward at the Wade hearing. Defendant also argues that the reliability of the identification was deficient, citing Officer Prince’s failure to mention his beard in describing him, both contemporaneously and, after, in his buy reports, and the disparity between his described and actual weight. Since neither of these points has merit and none of the other claims raised by defendant warrant reversal, the conviction should be affirmed.

While the People have the burden of going forward at a Wade hearing with evidence sufficient to demonstrate the constitutional propriety of a police-arranged identification procedure (see, People v James, 111 AD2d 254, affd 67 NY2d 662), where the identification is made by a trained undercover officer who observed the person making the sale during a face-to-face transaction, knowing that person would be arrested shortly, a station-house observation of such person by the undercover officer hours later would not be "of a kind ordinarily burdened or compromised by forbidden suggestiveness, warranting a lineup procedure or Wade hearing.” (People v Wharton, 74 NY2d 921, 922.)

Here, the Wade hearing testimony established, and it is not disputed, that defendant was viewed by a trained undercover officer, who observed him, in a one-week span of time, during two face-to-face drug transactions. Nor is it disputed that Officer Prince, at the time of the second encounter, knew that defendant would shortly be arrested by his back-up team. As the People argued in their papers opposing defendant’s motion for a Wade hearing and as the court, in its oral decision noted, although neither specifically used the word "confirmatory” to characterize the identification procedure at issue, these circumstances establish that the station-house identification procedure was confirmatory and not of the kind "warranting a lineup procedure or Wade hearing.” (Supra, 74 NY2d, at 922.) Thus, while the race, gender, ethnicity of those who were arrested with defendant and stood beside him at the station house when he was identified would have been relevant had this been a nonconfirmatory identification procedure, they are irrelevant in this case.

Even defense counsel, in characterizing the identification as a "confirmatory check” and a "confirmatory identification” in his cross-examination of Prince, recognized what was at issue at the Wade hearing, i.e., whether the station-house procedure was a proper confirmatory identification. Since the People presented undisputed proof at the hearing that the identification was confirmatory, rendering any inquiry into the physical makeup of the participants in that proceeding irrelevant, they met their burden of going forward and the hearing court properly denied defendant’s motion to suppress the identification.

Nor, as is suggested by the dissent, is a drive-by identification of a suspect in custody a necessary precondition to the validity of a subsequent station-house confirmatory identification. While the undercover officer made a drive-by confirmation in Wharton (supra), this fact was in no way dispositive in the court’s determination. In fact, as Wharton explicitly holds, what is dispositive is that the undercover officer observed the defendant, as here, during the "face-to-face drug transaction” knowing that he would "shortly be arrested” (supra, 7A NY2d, at 922), not that he saw the defendant arrested. Moreover, as the case law makes clear, station-house confirmatory identifications made hours after the undercover buy are proper, irrespective of whether there has been an on-the-scene identification. (See, e.g., People v Soto, 167 AD2d 302.)

Despite the evidence showing that defendant was arrested less than five minutes after the April 2, 1989 sale inside the apartment where that sale took place and that defendant was, at arrest, a dark-complected black man, close to 40 years old, approximately 6-feet tall, with a salt and pepper afro and wearing a red sweatshirt, as described by the undercover officer, the dissent rejects the reliability of Officer Prince’s identification of him, citing the officer’s failure to note, as part of that description, defendant’s beard and the discrepancy between his listed and actual weight. This argument, as well as others of a similar nature, was, of course, presented to the jury and, not surprisingly, rejected. That Prince did not mention defendant’s beard in his necessarily brief descriptions of J.D. Chief does not, as is suggested, mean that the man referred to as J.D. Chief was beardless. Such omission indicates no more than that Prince did not focus on facial hair as a characteristic of which he took specific note. Indeed, he identified defendant, who had a beard, as J.D. Chief at the station house and almost immediately filled out his April 2nd buy report without mentioning the beard. Had Prince viewed the beard as a required descriptive feature of J.D. Chief, he would surely have included it in his description. The weight discrepancy relates to a subjective evaluation as to which reasonable minds might differ and does not undermine the strength of the evidence proving defendant’s identity as J.D. Chief. On this record, it is clear that defendant’s identity as J.D. Chief was firmly established by proof beyond a reasonable doubt.

We have examined defendant’s other claims and find that they are without merit.

Accordingly, the judgment of the Supreme Court, New York County (Jeffrey Atlas, J., at Wade hearing; Felice Shea, J., at trial and sentence), rendered August 29, 1988, convicting defendant of two counts each of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree and sentencing him to four concurrent indeterminate terms of imprisonment of from 5 Vi to 11 years, should be affirmed.