AD1 order dated December 3, 2013, affirming judgment of conviction. Decision below: 112 AD3d 405, 975 NYS2d 669. Lippman, Ch. J., granted leave June 5, 2014. To be argued June 4, 2015.

ISSUE PRESENTED: Whether the Wharton (74 NY2d 921) exception to the ID-notice requirement (CPL 710.30(1)(b)) is applicable to the undercover “ghost” who did not take part in the hand-to-hand transaction. (Assigned counsel: Carl S. Kaplan & Robert S. Dean, Center for Appellate Litigation, 120 Wall Street, 28th Floor, NYC 10005.)

Issue: Whether the prosecution should have been excused from C.P.L. §710.30 notice requirements where the “ghost” officer in a buy and bust operation had previously identified the defendant prior to doing so in court.

 

Held: The prosecution was required to give such notice and the court erred in allowing the officer to testify at trial relating to his identification of defendant.  However, the error was  harmless.  

 

Adhering to it’s earlier decision in People v. Boyer, 6 N.Y.3d 427 (2006), the Court found that “CPL 710.30 could not be clearer.”  When the prosecution intends to offer at trial testimony of an observation of the defendant during the crime or on some other occasion relevant to the case and the witness has previously identified the defendant, the statute mandates the prosecution to notify the defense of such intention within 15 days after arraignment and before trial.  Not only is the statutory language clear, but the procedure is simple.  The Court distinguished its decision in People v. Wharton, 74 N.Y.2d 921 (1989) where it held that a defendant was not entitled to a Wade hearing because the identification at issue involved an undercover officer during a face-to-face drug transaction, an observation “so clear that the identification could not be mistaken thereby obviating the risk of under suggestiveness.”

 

CAL observes: Given the statute’s clear language  and the Court’s previous ruling in Boyer, the decision here makes clear that notice is the rule, Wharton a narrowly construed exception,  and that the prosecution fails to abide by the statute’s terms at its own risk.  But the Court’s affirming the conviction on harmless error grounds undercuts the statute’s strict requirements, plain language and simple procedures.