pretrial Wade hearing in New York

2020At a pretrial Wade hearing ( see United States v Wade , 388 US 218 ), the defendant argued that the identification testimony should be suppressed as the identification procedures were unduly suggestive.

2019Moreover, defense counsel was present at the lineup, and the pretrial Wade hearing ( see United States v Wade , 388 US 218 ), which addressed the admissibility of the identification, provided sufficient notice to the defendant of the People's intention to use the identification at trial ( see People v Green , 127 AD3d at 1475-1476; People v Boswell , 193 AD2d at 690 ).

2006(People v Foster, 200 AD2d 196 [1994].) The issue in the latter being the prior familiarity of the complaining witness and the defendant which limits any risk of a misidentification (People v Rodriguez, 79 NY2d 445 [1992]).

2006The court in Day noted the difference between the pretrial Wade hearing and the pretrial Rodriguez hearing. [FN*] The issue in the former being the undue suggestiveness of the police procedure in which the presence of the defendant is not necessary to resolve this issue and defendant's presence would be in itself suggestive. ( People v Foster , 200 AD2d 196 [1994].) The issue in the latter being the prior familiarity of the complaining witness and the defendant which limits any risk of a misidentification ( People v Rodriguez , 79 NY2d 445 [1992]).

2006(People v Foster, 200 AD2d 196 [1994].) The issue in the latter being the prior familiarity of the complaining witness and the defendant which limits any risk of a misidentification (People v Rodriguez, 79 NY2d 445 [1992]).

2006The court in Day noted the difference between the pretrial Wade hearing and the pretrial Rodriguez hearing. [FN*] The issue in the former being the undue suggestiveness of the police procedure in which the presence of the defendant is not necessary to resolve this issue and defendant's presence would be in itself suggestive. ( People v Foster , 200 AD2d 196 [1994].) The issue in the latter being the prior familiarity of the complaining witness and the defendant which limits any risk of a misidentification ( People v Rodriguez , 79 NY2d 445 [1992]).

2006We reach this issue as a matter of discretion in the interest of justice despite defendant’s failure to seek a midtrial Wade hearing following the victim’s testimony regarding the second photo array, particularly in view of the fact that defendant sought a pretrial Wade hearing (see People v Rahming, 26 NY2d 411, 417 [1970]), and we conclude that defendant is “entitled to a hearing concerning whether the improper [conduct of the detective] ‘affect[ed] the reliability of the [victim’s] in-court identification and render[ed] it inadmissible’ ” (Dodt, 61 NY2d at 417 ).

1985Our court cannot make such a finding based solely upon the evidence adduced at trial (People v Dodt, 61 NY2d 408, 417 ; People v Gonzalez, supra, pp 721-722 ).

1993Accordingly, in the absence of any proof of suggestiveness, the defendant was not entitled to a further inquiry to ascertain whether Wagner had an independent source for making an in-court identification (see, People v Chipp, 75 NY2d 327 , cert denied 498 US 833 ).

1993A defendant has no absolute right to call a complainant as a witness at a pretrial Wade hearing (People v Chipp, 75 NY2d 327, 336-338 , cert denied 498 US 833 ), and we find no substantive indication of undue suggestiveness (see, People v Peterkin, 75 NY2d 985 ; People v Taylor, 186 AD2d 367 , lv denied 80 NY2d 1030 ) in the identification procedures to have warranted granting the defendant such relief.

1993Accordingly, in the absence of any proof of suggestiveness, the defendant was not entitled to a further inquiry to ascertain whether Wagner had an independent source for making an in-court identification (see, People v Chipp, 75 NY2d 327 , cert denied 498 US 833 ).

1993A defendant has no absolute right to call a complainant as a witness at a pretrial Wade hearing (People v Chipp, 75 NY2d 327, 336-338 , cert denied 498 US 833 ), and we find no substantive indication of undue suggestiveness (see, People v Peterkin, 75 NY2d 985 ; People v Taylor, 186 AD2d 367 , lv denied 80 NY2d 1030 ) in the identification procedures to have warranted granting the defendant such relief.

1991It is clear that at a pretrial Wade hearing it is the People’s burden to come forward with evidence showing that the identification procedures used by the police were not violative of the defendant’s constitutional rights (see, People v James, 111 AD2d 254 , affd on other grounds 67 NY2d 662 ; People v James, 110 AD2d 1037 ; People v De Congilio, 71 AD2d 990 ; People v Borges, 37 AD2d 581 ).

1985Although neither statute nor court decisions requires the People to call any particular witness at a Wade hearing (see, People v James, 110 AD2d 1037 ; People v Sutton, 47 AD2d 455, 459 ), where, as here, the pretrial identification procedure has been found to be inherently suggestive, the People have the burden of establishing that the in-court identification has not been tainted (People v Rahming, 26 NY2d 411, 417 ; People v Ballott, supra, pp 606-607 ).

1986In any event, even if these procedures were unduly suggestive, the People established an independent source for the identification of the defendant by the witness by clear and convincing evidence at the pretrial Wade hearing (see, People v Ballott, 20 NY2d 600, 606 ).

1985The suppression court, however, failed to make any determination with respect to whether, in spite of the suggestive identification procedure, there was an independent basis for the witnesses’ in-court identification of defendant (see, People v Ballott, 20 NY2d 600, 606 ; People v Smith, 109 AD2d 1096, 1098 ).

2019We agree with the Supreme Court's determination to impose consecutive sentences for the convictions of murder in the second degree and criminal possession of a weapon in the second degree in light of the evidence at trial showing that the defendant was carrying the subject weapon in his waistband prior to any altercation with the victim and, thus, forming his intent to shoot the victim ( see People v Brown , 21 NY3d 739, 751-752 ; People v Fabers , 133 AD3d 616, 618 ; People v Mitchell , 118 AD3d 1417, 1418-1419 ).

2019Moreover, defense counsel was present at the lineup, and the pretrial Wade hearing ( see United States v Wade , 388 US 218 ), which addressed the admissibility of the identification, provided sufficient notice to the defendant of the People's intention to use the identification at trial ( see People v Green , 127 AD3d at 1475-1476; People v Boswell , 193 AD2d at 690 ).

2019We agree with the Supreme Court's determination to impose consecutive sentences for the convictions of murder in the second degree and criminal possession of a weapon in the second degree in light of the evidence at trial showing that the defendant was carrying the subject weapon in his waistband prior to any altercation with the victim and, thus, forming his intent to shoot the victim ( see People v Brown , 21 NY3d 739, 751-752 ; People v Fabers , 133 AD3d 616, 618 ; People v Mitchell , 118 AD3d 1417, 1418-1419 ).

2019We agree with the Supreme Court's determination to impose consecutive sentences for the convictions of murder in the second degree and criminal possession of a weapon in the second degree in light of the evidence at trial showing that the defendant was carrying the subject weapon in his waistband prior to any altercation with the victim and, thus, forming his intent to shoot the victim ( see People v Brown , 21 NY3d 739, 751-752 ; People v Fabers , 133 AD3d 616, 618 ; People v Mitchell , 118 AD3d 1417, 1418-1419 ).

2015The record of the pretrial Wade hearing (see United States v Wade, 388 US 218 [1967]) supports the hearing court’s determination that the showup identification by an experienced undercover officer, who had familiarized himself with the defendant’s appearance over the course of the investigation, was merely confirmatory (see People v Wharton, 74 NY2d 921, 922-923 [1989]; People v James, 48 AD3d 698 [2008]; People v De La Cruz, 44 AD3d 346, 347 [2007]; People v Bennett, 31 AD3d 780, 780 [2006]; People v Quinones, 292 AD2d 239 [2002]; People v Pipersburg, 273 AD2d 77 [2000]).

2015The record of the pretrial Wade hearing (see United States v Wade, 388 US 218 [1967]) supports the hearing court’s determination that the showup identification by an experienced undercover officer, who had familiarized himself with the defendant’s appearance over the course of the investigation, was merely confirmatory (see People v Wharton, 74 NY2d 921, 922-923 [1989]; People v James, 48 AD3d 698 [2008]; People v De La Cruz, 44 AD3d 346, 347 [2007]; People v Bennett, 31 AD3d 780, 780 [2006]; People v Quinones, 292 AD2d 239 [2002]; People v Pipersburg, 273 AD2d 77 [2000]).

2015The record of the pretrial Wade hearing (see United States v Wade, 388 US 218 [1967]) supports the hearing court’s determination that the showup identification by an experienced undercover officer, who had familiarized himself with the defendant’s appearance over the course of the investigation, was merely confirmatory (see People v Wharton, 74 NY2d 921, 922-923 [1989]; People v James, 48 AD3d 698 [2008]; People v De La Cruz, 44 AD3d 346, 347 [2007]; People v Bennett, 31 AD3d 780, 780 [2006]; People v Quinones, 292 AD2d 239 [2002]; People v Pipersburg, 273 AD2d 77 [2000]).

2008The record of the pretrial Wade hearing (see United States v Wade, 388 US 218 [1967]) supports the hearing court’s determination that the undercover officer’s identification of the defendant from a single photograph was merely confirmatory (see People v Wharton, 74 NY2d 921, 923 [1989]; People v Bennett, 31 AD3d 780 [2006]; People v Andrews, 30 AD3d 434 [2006]; People v Smith, 293 AD2d 764 [2002]).

2006The record of the pretrial Wade hearing (see United States v Wade, 388 US 218 [1967]) supports the hearing court’s determination that the undercover officer’s identification of the defendant from a single photograph was merely confirmatory (see People v Wharton, 74 NY2d 921, 923 [1989]; People v Smith, 293 AD2d 764, 765 [2002]; People v Polk, 284 AD2d 416, 417 [2001]; People v Almonte, 181 AD2d 736 [1992]).

2006Defendant waived his contention that the conviction is not supported by legally sufficient evidence (see People v Payne, 3 NY3d 266, 273 [2004], rearg denied 3 NY3d 767 [2004]; People v Hines, 97 NY2d 56, 61 [2001], rearg denied 97 NY2d 678 [2001]; People v Adamus, 31 AD3d 1210 [2006]), and we conclude that the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).

2006The defendant received the effective assistance of counsel (see People v Baldi, 54 NY2d 137 [1981]).