AMENDED DECISION AND ORDER By motion filed October 17, 2022, defendant moves, again, for an evidentiary hearing to determine whether the identification procedure in this case was subject to notice within the context of Criminal Procedure Law §710.30 (1)(b). In papers dated October 24, 2022, the People oppose. After review of the papers, the parties’ respective arguments, the indictment, other papers on file with the court, and prior court proceedings, this Court, by decision and order dated November 1, 2022, denied defendant’s application for what would effectively be a preclusion hearing. That decision is recalled and replaced as follows. I. Relevant Background and Procedural History By indictment filed August 20, 2021, defendant is charged with two counts of criminal possession of a weapon in the second degree (Penal Law §265.03 [1][b], [3]), both class C violent felonies, attempted assault in the first degree (Penal Law §110/120.10 [1]), a class C violent felony, and assault in the second degree (Penal Law §110/120.05 [2]), a class D violent felony. In papers dated January 14, 2022, defendant moved by omnibus motion to preclude identification evidence not properly served pursuant to CPL §710.30 (1)(b), and the People opposed. By decision and order dated April 8, 2022, this Court denied defendant’s motion. After orally moving to reargue that branch of his omnibus motion, this Court, on July 27, 2022, issued an amended omnibus decision, once again denying defendant’s motion. Defendant subsequently filed the instant motion seeking an evidentiary hearing. The People allege that on February 17, 2019, at approximately 3:00 a.m., on 12th Street between 40th and 41st Avenues, in Queens County, defendant, pursuant to a verbal dispute with the complainant, displayed a firearm, pointed it at the complainant firing several shots striking him in the left leg. Police Officer Marlo Alvarado (PO Alvarado) testified before the grand jury that the complainant and an eyewitness flagged him. After speaking with them, PO Alvarado and his partner began canvassing the area. Proceeding on 12th Street toward 40th Avenue, PO Alvarado observed defendant walking on the sidewalk at 38th Avenue. They approached and engaged him in a conversation for approximately thirty seconds, during which they asked if he had seen or heard anything. Defendant responded that he had not. PO Alvarez neither arrested defendant nor took any other action. Notably, PO Alvarez did not, at the time, know who defendant was. (See People’s affirmation in response to defendant’s omnibus motion at pp 10-11; grand jury tr at 72-78). The next day, pursuant to search warrant Q-234/2019, authorized by the Honorable Toni Cimino on February 18, 2019, officers recovered a loaded 9mm Lugar semi-automatic pistol from inside the trunk of a red 2018 Honda Accord, New York license plate number GNX4380. A few days later, Police Officer Callan (PO Callan), the assigned case detective, created a wanted flyer containing defendant’s photograph and distributed it via police department e-mail to the precinct. PO Alvarez further testified he received that alert on his department cell phone containing defendant’s photograph — not an arranged photographic presentation — recognizing him as the same person with whom he had spoken during the early morning hours on 12th Street. (See People’s affirmation in response to defendant’s omnibus motion at p 11; grand jury tr at 78-82) II. Preclusion Hearing Defendant moves for an evidentiary hearing to determine whether the identification procedure in this case was subject to CPL §710.30 (1)(b) notice asserting he is entitled to a so-called preclusion hearing because the People’s allegations are hearsay. First, as noted, this Court has reviewed and made part of this record the non-hearsay grand jury testimony of PO Alvarado. But more significantly, as this Court previously determined in its amended omnibus decision dated July 27, 2022, the People were under no obligation to provide CPL §710.30 (1)(b) notice. Hearsay or not, if the People were not obligated to serve notice, defendant is not entitled to an evidentiary hearing. It would appear however, that despite his valiant effort to thread the evidentiary hearing needle like a master tailor, defendant nevertheless conflates the meaning of “police-involved” and “police-arranged” procedures in the context of the Criminal Procedure Law. And, to the extent defendant claims the CPL §710.30 (1)(b) notice requirement applies to identification procedures beyond those that are police-arranged, this too, is entirely without merit. The Criminal Procedure Law, and accompanying caselaw, contemplates an “arranged” confrontation, not the product of an unplanned encounter between a witness and the suspect let alone spontaneous. Consequently, an identification not “arranged” is simply not subject to notice, a hearing, or suppression, such as when a witness inadvertently views a photograph of a defendant (see People v. Leibert, 71 AD3d 513 [1st Dept 2010]; People v. Stevens, 44 AD3d 882 [2d Dept 2007]; People v. Thompson, 17 AD3d 138 [1st Dept 2005]; People v. Jimenez, 232 AD2d 210, 210 [1st Dept 1996]). So, an officer might see and recognize a defendant’s photograph at the precinct, on a “wanted” poster, in a file she peruses during an investigation, or unintentionally during the regular course of her duties. Such an occurrence is merely an observation, not an identification. And, at most, it is an accidental encounter. But it is by no means an “arranged” identification procedure. It is therefore plainly outside the scope of CPL §710.30 (see People v. Anderson, 149 AD3d 1407 [3d Dept 2017]; People v. Acosta, 181 A D2d 577 [1st Dept 1992]; People v. Moon, 180 AD2d 652 [2d Dept 1992]). Thus, where, a police officer views, or is shown, a suspect’s image during a police investigation — not for the explicit purpose of identifying him as the perpetrator — such viewing is accidental. It is not, as defendant contends, considered an “identification” within CPL §710.30 (1)(b). Notice is therefore not required (see (People v. Reyes, 69 Misc 3d 963 [Sup Ct, NY County 2020]; People v. Cuevas, 167 Misc 2d 738 [Sup Ct, Kings County 1995]). But even a purposeful viewing may not be an “identification” if, as here, it occurs during the normal course of an investigation (Cuevas at 741). Nor will an identification be subject to CPL §710.30 if the police officer was not, as the statute requires, a witness to any “observation…[during] the commission of the offense or upon some other occasion relevant to the case” and does not participate in a procedure designed to identify the perpetrator based on such observation (People v. Reyes, 69 Misc 3d 963 [Sup Ct, NY County 2020]). As such, where, as here, viewing of the inter-departmental e-mail was an inadvertent observation, it does not come within the purview of having “previously identified” a defendant within the meaning of CPL §710.30 (1)(b) (People v. Moon, 580 NYS2d 362, citing People v. Gissendanner, 48 NY2d 543, 551-552 [1979]). Essentially, what defendant seeks is a hearing to determine whether he is entitled to a hearing but provides no relevant authority in support of it. Rather, defendant cites to a myriad of authority where courts have granted a factual hearing to determine whether the People were required to serve notice under CPL §710.30 (1)(b). Each, however, is meaningfully distinguishable. Many involve undisputable police-arranged identification procedures (i.e. show-up [People v. Brown, 86 NY2d 728 (1995)], photo-array [People v. Williamson, 79 NY2d 799 (1991); People v. Castagna, 196 AD2d 879 (2nd Dept 1993)], point-out [People v. Dixon, 85 NYS2d 218 (1995)], or line-up) specifically conducted for the witness to identify the perpetrator. Such procedures squarely fall within the notice requirement of CPL §710.30 (1)(b). Other cases defendant relies on focus not on whether the identification was police-arranged, but whether they were exempt from the notice requirement of CPL §710.30 (1)(b) as confirmatory in nature (see People v. Davis, 159 AD3d 1531 [4th Dept 2018]; People v. Kahley, 214 AD2d 960 [4th Dept 1995]; People v. Whitting, 5 Misc 3d 802 [Crim Ct, Queens County 2004, Zayas, J]). Notably, none address the issue defendant presents. And none exists. IV. Conclusion Accordingly, this Court finds the People were under no obligation to provide CPL §710.30 (1)(b) notice. Moreover, defendant is not, as he claims, entitled to an evidentiary hearing on this issue. As such, defendant’s motion for a preclusion hearing is therefore denied. This constitutes the decision and order of the court. Dated: November 14, 2022
