DECISION AND ORDER This matter is presently before this Court for a Dunaway/Wade hearing. After the hearing had begun, the defendant moved to preclude certain identification evidence based on the People’s failure to provide sufficient notice pursuant to CPL §710.30(1)(b). The People oppose the defendant’s motion. Having reviewed the defendant’s motion, the People’s opposition, the indictment, and other papers in the court file, the defendant’s motion is granted and the People are precluded from eliciting any identification testimony from Robert Winley, including an in-court identification. Factual and Procedural Background The defendant is charged with, inter alia, two counts of Grand Larceny in the Fourth Degree (PL §155.30[1] & [4]) and Criminal Possession of Stolen Property in the Fourth Degree (PL §165.45[1]). The People allege that the defendant stole certain property from the complainant’s car. On September 15, 2022, the complainant discovered that the property was missing and she utilized an application on her mobile phone to track the location of her Bluetooth headphones. She proceeded to that location and knocked on the door. An unknown male opened the door and the complainant explained why she was there. The male handed the complainant her headphones, and the complainant observed her bag inside the home. The male informed the complainant that he believed a person named “E” had the complainant’s remaining property. The complainant left her information with the unknown male, who called her later that day to let her know that “E” had returned. The complainant then returned to the location and met “E,” the defendant, who told her that he would return her property to her residence by the end of the day. The complainant took a video with her mobile phone of the defendant at that time. Later that day, the complainant received a phone call from her uncle, Robert Winley, who informed her that someone had come to return her property. The complainant returned to her residence and observed the defendant in front of her neighbor’s home. When she approached the defendant, he displayed a firearm at her and then fled. The complainant called 911. Detective Sheldon Malcolm responded to the location and observed the video taken by the complainant. He recognized the defendant in the video based on previous experiences with him. Detective Malcolm then compiled a photo array, which included an arrest photo of the defendant from a prior arrest. The array was administered to the complainant in a double-blind procedure and the complainant identified the defendant. On September 24, 2022, Detective Malcolm went to the complainant’s residence, where he showed Mr. Winley a still image of the defendant from the video taken by the complainant and asked him whether he was the individual who returned the complainant’s property. Winley responded that it was. The defendant was later arrested on October 22, 2022, by a detective of the warrants squad. Winley also identified the defendant in that same still image while testifying in the grand jury. At the defendant’s arraignment, the People served CPL §710.30(1)(b) notice of the photo array which was administered to the complainant. The People did not serve any notice as to the identifications by Robert Winley. The defendant now moves to preclude identification testimony by Robert Winley based on the People’s failure to serve notice. In papers dated May 11, 2023, the defendant moved by omnibus motion to preclude identification notice not properly served pursuant to CPL §710.30(1)(b), and the People opposed. By decision and order dated June 12, 2023, another Justice of this Court denied the defendant’s motion as premature and gave leave to the defendant to renew if the People sought to file a late notice. The defendant now moves again to preclude the unnoticed identification testimony by Mr. Winley. Conclusions of Law CPL §710.30 requires that if the People intend to offer testimony at trial of an observation of the defendant by an individual who previously identified the defendant in any picture or video, electronic or otherwise, they must serve notice within 15 days of arraignment (CPL §710.30[1][b]). The statute serves to facilitate the defendant’s pre-trial right to test the reliability of identification testimony that the People intend to introduce at trial (see People v. Boyer, 6 NY2d 427, 431 [2006]). The procedure is simple: “the People serve notice, the defendant moves to suppress and the court holds a Wade hearing to consider the suppression motion” (id.). Generally, as long as the defendant’s motion to suppress alleges undue suggestiveness, the defendant is entitled to a Wade hearing (see id.). If the People fail to give timely notice, the prosecution will be precluded from introducing such evidence at trial, unless (1) it is permitted to serve a late notice for good cause shown, or (2) the defendant has moved to suppress the identification testimony and the motion is denied (see §CPL 710.30[2], [3]). Here, the People have unequivocally stated their intention to call Mr. Winley at trial, and Mr. Winley previously identified the defendant in a photograph as the individual who knocked on his door and returned the complainant’s tablet and laptop. At a trial, Mr. Winley would likely make an in-court identification of the defendant as the individual who returned the complainant’s tablet and laptop, and at a minimum, his testimony would constitute direct evidence as to the criminal possession of stolen property charge. Thus, a plain reading of the statute required the People to serve notice of their intention to call Mr. Winley to testify at trial (see CPL §710.30[1][b]). The People, however, claim that they were not required to serve notice of this identification because it was confirmatory in nature. The People are incorrect. To establish that this identification was merely confirmatory, the People would have to demonstrate that, “as a matter of law, the witness [was] so familiar with the defendant that there [was] ‘little or no risk’ that police suggestion could lead to a misidentification” (People v. Rodriguez, 79 NY2d 445, 450 [1983]). Here, Mr. Winley only had one interaction with the defendant which lasted several minutes. In the grand jury, he testified that he did not know who the defendant was and that he had not seen him since that date, which was nine days prior to the single-photo identification procedure. On these facts, it cannot be said, as a matter of law, that the identification was confirmatory (see People v. Newball, 76 NY2d 587, 591-92 [1990]). And contrary to the People’s contention, this identification was not made “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” (People v. Wharton, 74 NY2d 921, 922-23 [1989]), given Mr. Winley identified the defendant in the single photograph shown to him nine days after first interacting with the defendant. The People also contend that they were not required to serve notice because single-photo identification procedures are inadmissible at trial, and accordingly, they could not offer any testimony about it at trial. The inadmissibility of the identification procedure, however, does not relieve the People of their notice obligation (see People v. Nolasco, 70 AD3d 972 973-73 [2d Dept 2010]). People v. Nolasco is instructive here. In that case, two men robbed Jorge and his brother Jose at gunpoint. Both brothers identified the defendant as one of the perpetrators on a photo manager computer, and Jorge picked the defendant out of two lineups arranged by the police. The People served notice of their intent to present identification testimony from Jorge but not from Jose. At trial, the People called Jose as a witness and the defendant moved to preclude him from making an in-court identification. The trial court denied the motion and held an independent source hearing, after which Jose was permitted to make an in-court identification of the defendant. The defendant was convicted of robbery in the first degree. The Second Department reversed, finding that the trial court should have granted the defendant’s motion because the People were required to serve notice as to Jose’s proposed in-court identification. Here, as with Jose in Nolasco, Mr. Winley identified the defendant in a procedure that is inadmissible at trial and the People now seek to offer his identification testimony without having served notice of their intention to do so. Thus, based on Nolasco, the People were required to serve notice even if the only identification testimony of Mr. Winley that they sought to offer at trial was an in-court identification (see also People v. Smothers, 20 Misc.3d 654 [Sup. Ct., Kings Co. 2008]). As noted above, CPL §710.30 facilitates the defendant’s right to test whether Mr. Winley’s potential in-court identification of the defendant was unduly influenced by the inadmissible identification procedure (see People v. Boyer, 6 NY2d at 431). Moreover, Nolasco did not address the independent source hearing that the trial court conducted, suggesting that having an independent source for identification testimony does not relieve the People from serving notice in the first place. Accordingly, the People’s contention that there was an independent source for Mr. Winley’s in-court identification is without merit. The People further contend that the Court which rendered the Omnibus decision in this matter previously denied the motion to preclude. The Omnibus Court, however, denied the motion as premature and allowed for renewal if the People sought to file a late notice. Implicit in that decision is that the defendant had leave to renew if it became clear that the People sought to introduce testimony regarding an observation of the defendant on some occasion relevant to the case without filing the necessary notice pursuant to CPL §710.30(1)(b). The People have since made their intention to call Mr. Winley at trial clear, and accordingly, the defendant’s motion is now ripe for review. Finally, the People’s contention that the defendant waived his right to preclusion because he already moved to suppress other identification testimony is without merit. The defendant, by moving to suppress properly noticed identification evidence, does not “waive his right to object to the admission of [identifications] which he was at the time of the motion still unacquainted” (People v. St. Marline, 160 AD2d 35, 40 [1st Dept 1990]; see also, People v. Smothers, 20 Misc.3d 654). Given the People fail to argue that they had good cause for their failure to serve notice, they are precluded from eliciting any identification testimony from Mr. Winley, including an in-court identification (see CPL §710.30[2] & [3]). The foregoing constitutes the opinion, decision, and order of the court. Dated: October 6, 2023
