SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

541 

KA 14-00722 

PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, TROUTMAN, AND SCUDDER, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

JOSEPH J. GAMBALE, DEFENDANT-APPELLANT. 

 

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF

COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Monroe County Court (Douglas A.

Randall, A.J.), rendered September 6, 2013. The judgment convicted

defendant, upon a jury verdict, of robbery in the first degree. 

It is hereby ORDERED that the case is held, the decision is

reserved and the matter is remitted to Monroe County Court for further

proceedings in accordance with the following memorandum: Defendant

appeals from a judgment convicting him upon a jury verdict of robbery

in the first degree (Penal Law § 160.15 [4]). Defendant contends that

County Court should have suppressed a parole officer’s identification

of him as the person committing the robbery depicted in a surveillance

video on the basis that the police-staged procedure was unduly

suggestive. The evidence at the suppression hearing established that,

as part of his investigation into an armed robbery of a hotel that was

captured on surveillance video, a police investigator called a parole

officer and inquired about her role as a parole officer for defendant

and her familiarity with him. Upon confirming that the parole officer

was familiar with defendant, the investigator proceeded to ask her to

report to the police department in order to view the video and to

determine if she recognized anyone depicted therein. The parole

officer identified defendant as the person committing the robbery. 

The court denied defendant’s motion to suppress, ruling that the

procedure was not unduly suggestive. That ruling was error.

Preliminarily, neither defendant’s general objection to undue

suggestiveness in that part of his omnibus motion seeking suppression

of the identification nor his arguments to the hearing court were

sufficient to preserve for our review his contention that the

identification procedure was unduly suggestive as a result of the

investigator’s conversation with the parole officer. Defendant

“failed to raise that specific contention either as part of his

omnibus motion . . . or at the Wade hearing” (People v Morman, 145
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KA 14-00722 

AD3d 1435, 1435-1436). We note, however, that the court made factual

findings regarding the investigator’s pre-identification conversation

with the parole officer, and drew a legal conclusion that, based upon

the totality of the circumstances, the procedure was not inherently

suggestive because there was no influence or suggestion by the

investigator and the procedure was not otherwise tainted. We

therefore conclude that the court “expressly decided the question

raised on appeal,” thereby preserving defendant’s specific contention

for our review (CPL 470.05 [2]; see People v Prado, 4 NY3d 725, 726,

rearg denied 4 NY3d 795; People v Davis, 69 AD3d 647, 648-649; cf.

People v Graham, 25 NY3d 994, 997; Morman, 145 AD3d at 1435-1436).

With respect to the merits, it is well settled that “a pretrial

identification procedure that is unduly suggestive violates a

defendant’s due process rights and is not admissible” (People v

Marshall, 26 NY3d 495, 503 [internal quotation marks omitted]; see

People v Chipp, 75 NY2d 327, 335, cert denied 498 US 833). “ ‘[T]here

is nothing inherently suggestive’ in showing a witness a surveillance

video depicting the defendant and other individuals, provided that the

‘defendant was not singled-out, portrayed unfavorably, or in any other

manner prejudiced by police conduct or comment or by the setting in

which [the defendant] was taped’ ” (People v Davis, 115 AD3d 1167,

1169, lv denied 23 NY3d 1019, quoting People v Edmonson, 75 NY2d 672,

676-677, rearg denied 76 NY2d 846, cert denied 498 US 1001). As the

Court of Appeals has explained, however, when the police employ an

identification procedure whereby a noneyewitness is confronted with a

recording for the purpose of determining whether the noneyewitness is

able to identify the perpetrator as a person with whom he or she is

familiar, “[t]he only apparent risk with such a witness [is] that the

police might suggest that the voice [or person depicted] on the

recording [is] that of a particular acquaintance” (People v Collins,

60 NY2d 214, 220).

Here, we agree with defendant that, contrary to the court’s

determination that “[t]here was no influence or suggestion” by the

investigator, the evidence establishes that the investigator suggested

to the parole officer prior to her identification that the person

depicted committing the robbery on the surveillance video was

defendant (cf. Collins, 60 NY2d at 220, affg 84 AD2d 35, 39-40). 

Instead of requesting the parole officer’s assistance in identifying

someone from the video without preemptively disclosing the subject of

his investigation, the investigator engaged in a conversation “about

her being a parole officer for [defendant].” During the conversation,

the investigator “asked [the parole officer] if she was familiar with

[defendant].” The parole officer responded that she had “lots of

contact” with defendant, so the investigator proceeded to ask her to

“come down and view a video.” The investigator subsequently met with

the parole officer at the police department and asked her to view the

video to determine if she recognized anyone, and the parole officer

identified defendant as the person committing the robbery. We

conclude that the investigator, by contacting the parole officer and

inquiring about her familiarity with defendant prior to the parole

officer’s viewing of the video, engaged in the type of undue

suggestiveness identified in Collins inasmuch as his comments
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KA 14-00722 

improperly suggested to the parole officer that the person she was

about to view was a particular acquaintance of hers, i.e., defendant

(see id. at 220).

Contrary to the People’s contention, we conclude that the

investigator “singled out” defendant inasmuch as he asked the parole

officer about her familiarity with defendant only and, upon receiving

an affirmative response, then asked her to view the video. The

People’s contention that the investigator’s comments were not unduly

suggestive because there were other people depicted in the video whom

the parole officer could have identified, e.g., guests leaving and

entering the hotel, and hotel clerks and managers, is without merit

inasmuch as there is only one perpetrator depicted committing an armed

robbery (cf. Davis, 115 AD3d at 1167, 1169). We reject the People’s

further contention that the error may be deemed harmless. Even

assuming, arguendo, that the evidence was overwhelming, it cannot be

said that there is no reasonable possibility that the parole officer’s

identification of defendant as the perpetrator of the robbery in the

video—the only such identification of defendant at trial given the

inability of the hotel staff to identify him—might have contributed to

the jury’s verdict convicting defendant (see generally People v

Crimmins, 36 NY2d 230, 237).

The People nonetheless contend, consistent with the alternative

ground that they asserted in opposition to the motion, that the court

properly refused to suppress the parole officer’s identification

inasmuch as it was merely confirmatory. In its suppression ruling,

however, the court focused exclusively on whether the procedure was

unduly suggestive, and failed to rule on the “separate and

analytically distinct” issue whether the identification was

confirmatory (People v Garrett, 23 NY3d 878, 885 n 2, rearg denied 25

NY3d 1215; see generally People v Bolden, 197 AD2d 528, 529, lv denied

82 NY2d 922), i.e., whether, “as a matter of law, the [parole officer

was] so familiar with . . . defendant that there [was] ‘little or no

risk’ that police suggestion could lead to a misidentification”

(People v Rodriguez, 79 NY2d 445, 450). “CPL 470.15 (1) precludes

[this Court] from reviewing an issue that was either decided in an

appellant’s favor or was not decided by the trial court” (People v

Ingram, 18 NY3d 948, 949; see People v LaFontaine, 92 NY2d 470, 473-

474, rearg denied 93 NY2d 849; People v Rainey, 110 AD3d 1464, 1466). 

We therefore hold the case, reserve decision, and remit the matter to

County Court to rule upon that issue based on the evidence presented

at the suppression hearing.

Entered: May 5, 2017 Frances E. Cafarell

Clerk of the Court