People v. Gordon, 76 N.Y.2d 595 (1990)
When an undercover officer identifies a suspect in a police-arranged setting significantly after the initial observation, the People must provide CPL 710.30 notice to the defendant, and failure to do so requires preclusion of the identification testimony.
Summary
The defendant was convicted of selling a controlled substance based on the testimony of two undercover officers. Officer Smith made the initial drug purchase, and Officer Doe observed the interaction from a distance. About a month later, Officer Smith saw the suspect again and alerted Officer Doe, who identified the defendant. The People did not provide CPL 710.30 notice regarding Officer Doe’s identification. The Court of Appeals reversed the conviction, holding that the identification was police-arranged and required CPL 710.30 notice. The failure to provide such notice warranted preclusion of Officer Doe’s identification testimony, and the error was not harmless because the remaining evidence depended largely on Officer Smith’s identification made almost a month after the incident.
Facts
On October 21, 1986, Officer Smith attempted to buy crack cocaine from a man at a location under investigation. Officer Doe observed the transaction from 50-75 feet away.
Officer Smith radioed a description of the seller to a backup unit, but the suspect had left by the time they arrived.
On November 18, 1986, Officer Smith saw the suspect again during another operation. He radioed Officer Doe, who identified the defendant as the person she had seen with Officer Smith on October 21.
Defendant was arrested.
Procedural History
The defendant was convicted of criminal sale of a controlled substance in the third degree.
The Appellate Division rejected the defendant’s argument that CPL 710.30 had been violated, relying on People v. Gissendanner and People v. Wharton.
The Court of Appeals reversed the Appellate Division’s order, granted the motion to suppress identification testimony, and ordered a new trial.
Issue(s)
Whether Officer Doe’s identification of the defendant on November 18 constituted a “previous identification” within the meaning of CPL 710.30, requiring the People to provide notice to the defendant.
Whether the failure to provide CPL 710.30 notice was a harmless error.
Holding
1. No, because the identification was police-arranged, it required CPL 710.30 notice, and the People failed to provide it.
2. No, because the remaining evidence against the defendant, primarily Officer Smith’s testimony, was not so overwhelming as to render the error harmless.
Court’s Reasoning
The Court reasoned that CPL 710.30 requires notice when a witness who has previously identified the defendant will testify about an observation of the defendant related to the case. The purpose of the statute is to allow the defendant to challenge the reliability of identification testimony before trial.
The Court rejected the People’s argument that Officer Doe’s identification was a chance encounter, noting that Officer Doe was directed to the defendant’s location by Officer Smith, making it a police-arranged identification.
The Court distinguished this case from People v. Gissendanner, which held that CPL 710.30 does not apply when the defendant’s identity is not in issue or the parties know each other. Here, Officer Doe’s brief observation of the defendant from a distance did not make the defendant “known to” her in the way contemplated by Gissendanner. The court quoted People v. Collins, noting that “in cases where the prior relationship is fleeting or distant it would be unrealistic to ignore the possibility that police suggestion may improperly influence the witness in making an identification.”
The Court also distinguished this case from People v. Wharton, where a confirmatory identification made shortly after a “buy and bust” operation did not require a Wade hearing. The significant lapse of time (four weeks) between Officer Doe’s initial observation and the later identification meant that it lacked the same assurances of reliability as the identification in Wharton.
The Court found that the failure to provide CPL 710.30 notice was not harmless error because the People’s case depended heavily on Officer Smith’s testimony, which was based on an identification made almost a month after the incident. Officer Doe’s testimony “tended to significantly bolster the testimony of Officer Smith,” and therefore could have influenced the jury’s assessment of Officer Smith’s reliability.