State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: January 29, 2015 105537 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

KARLYLE WHEELER,

Appellant.

________________________________

Calendar Date: November 20, 2014

Before: McCarthy, J.P., Garry, Lynch and Clark, JJ., concur.

__________

Cliff Gordon, Monticello, for appellant.

D. Holley Carnright, Kingston (Joshua Harris Povill of

counsel), for respondent.

__________

McCarthy, J.P.

Appeal from a judgment of the County Court of Ulster County

(Williams, J.), rendered October 3, 2012, upon a verdict

convicting defendant of the crimes of criminal possession of a

controlled substance in the third degree (two counts) and

criminal sale of a controlled substance in the third degree (two

counts).

Defendant was indicted on two counts of criminal possession

of a controlled substance in the third degree and two counts of

criminal sale of a controlled substance in the third degree after

he sold cocaine to an undercover police officer on two occasions

on the same date. Following trial, the jury found him guilty of

all counts. County Court sentenced him, as a second felony drug

offender whose prior felony conviction was a violent felony, to
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an aggregate term of 15 years in prison, followed by three years

of postrelease supervision. Defendant appeals.

County Court did not err in denying defendant's Batson

challenge. Defendant contended that the People were exercising

their peremptory challenges in a discriminatory manner because

they struck the only two remaining black members of the panel,

after one black individual was removed on consent. The People

then offered race-neutral reasons for their challenges. As to

one juror, who was a college student at Harvard, the prosecutor

stated that it was his practice to generally exclude students

from juries. The other excluded individual was a student

studying video game design. The prosecutor stated that this

juror was challenged because he was a student, he wore his hair

in long braids and people with long hair were often viewed as

rebellious, and the prosecutor preferred potential jurors later

in the panel so he challenged several people in a row, including

the black male. The court credited the People's reasons as

nonpretextual, noting that the prosecutor had exercised

peremptory challenges on students in other trials, and five out

of six students in the jury panel were removed that day. A party

may exclude jurors for physical traits such as long hair (see

e.g. Purkett v Elem, 514 US 765, 769 [1995]; People v Richie, 217

AD2d 84, 88 [1995], lv denied 88 NY2d 940 [1996]). The record

also supports the prosecutor's statement about desiring to reach

potential jurors later on the list, as several white jurors

seated next to the black male were also removed through

peremptory challenges. Thus, we will not disturb County Court's

findings accepting the People's reasons as nonpretextual (see

People v Lee, 80 AD3d 877, 879-880 [2011], lvs denied 16 NY3d

832, 833, 834 [2011]; People v Knowles, 79 AD3d 16, 21-22 [2010],

lv denied 16 NY3d 896 [2011]). 

County Court did not err in permitting the undercover

officer to identify defendant at trial. After holding a Wharton

hearing, the court found that the undercover officer's pretrial

identification of defendant was confirmatory and, therefore, not
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unduly suggestive.1 As the Court of Appeals held in People v

Wharton (74 NY2d 921 [1989]), a pretrial identification is merely

confirmatory where an undercover officer observed the defendant

firsthand during a planned drug transaction and made the

identification "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"

(id. at 922-923; see People v Roberts, 79 NY2d 964, 966 [1992];

People v Nguyen, 90 AD3d 1330, 1334 [2011], lv denied 18 NY3d 960

[2012]). As in that case, here the undercover officer's

participation in the drug transaction with this particular

individual "was planned, and [the officer] was experienced and

expected to observe carefully the defendant for purposes of later

identification and for completion of his official duties" (People

v Wharton, 74 NY2d at 923; compare People v Allah, 57 AD3d 1115,

1116-1117 [2008], lv denied 12 NY3d 780 [2009]). While this

exception is generally utilized in "buy and bust" situations, the

same reasoning applies to permit a confirmatory identification

that is conducted contemporaneously to the drug transaction

itself, whether the suspect is arrested immediately or not (see

People v Banks, 242 AD2d 726, 727 [1997], lv denied 91 NY2d 868

[1997]). Single photograph identifications are generally

considered suggestive, but they are permitted as confirmatory if

conducted within a short time after an officer's personal

observation of a defendant during a planned drug sale (see People

v Smith, 293 AD2d 764, 765 [2002], lv denied 98 NY2d 713 [2002];

People v Banks, 242 AD2d at 727; People v Miles, 219 AD2d 685,

686-687 [1995], lvs denied 87 NY2d 905 [1995], 88 NY2d 968

[1996]; compare People v Fulton, 223 AD2d 932, 932-933 [1996];

People v Munroe, 185 AD2d 530, 530-532 [1992]). 

Here, the undercover officer testified that he saw

defendant for about one minute during the first drug sale,

outside in daylight at a distance of about four feet. During the

second sale, the officer saw defendant for about 15 seconds, at

the same distance and in the same lighting conditions. The

1 At oral argument on appeal, defendant conceded that the

relevant information came out at the Wharton hearing, so that a

separate Wade hearing was unnecessary. 
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officer was shown a single picture of defendant 10 minutes after

the second sale. Defendant was arrested approximately seven

months after the drug sales. As the identification here was

connected to and contemporaneous with the drug transaction, it

qualified as merely confirmatory, to assure that the police would

arrest the proper person. In any event, the undercover officer's

observation of defendant for more than a minute in broad daylight

at a close distance constituted an independent basis for

permitting his in-court identification of defendant (see People v

Parker, 257 AD2d 693, 694-695 [1999], lvs denied 93 NY2d 1015,

1024 [1999]; People v Brown, 217 AD2d 797, 798 [1995], lv denied

86 NY2d 872 [1995]). While proof of a pretrial identification is

not permitted as part of the People's case-in-chief, here such

evidence was brought out by the defense in an effort to discredit

the officer's identification of defendant.

Defendant received the effective assistance of counsel. To

prevail on his argument of ineffective assistance, defendant had

to prove that his counsel failed to provide meaningful

representation, including proving that she lacked any strategic

or other legitimate explanations for the alleged errors (see

People v Baker, 14 NY3d 266, 270-271 [2010]). Defendant contends

that his counsel erred by failing to call his brother as a

witness. Despite defendant's testimony that his brother would

testify that he – and not defendant – was present at the time of

the drug sales at issue, the record does not necessarily support

his assertion. Outside the presence of the jury, defendant's

counsel informed County Court that she had talked to the brother

recently, but his story was inconsistent and he had stopped

returning counsel's calls. Defense counsel also felt that the

brother would not testify, but would invoke his Fifth Amendment

right not to incriminate himself. Thus, she had a legitimate

reason for not calling or subpoenaing the brother to testify. 

Defendant also contends that his counsel should have

objected to the admission of the drugs because there was no proof

that the drugs that were tested were the same drugs involved in

the sales. This argument is unpersuasive, and his counsel cannot

be faulted for failing to make an objection that would not have

been successful. Defense counsel could have cross-examined the

police officers and the confidential informant about the search
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of the informant prior to the drug transactions, specifically

regarding how the informant was able to buy ice cream if the

officers had verified that she had no money on her. This alleged

shortcoming, however, did not deprive defendant of effective

assistance. The topic was collateral, and all of the testimony

and video established that the confidential informant never

touched the drugs or money involved in the transaction. 

Accordingly, defendant's counsel provided him with meaningful

representation. 

County Court did not impermissibly expand its Sandoval

ruling during trial. During cross-examination of defendant, the

court allowed the People to explore additional information and

underlying facts about one of defendant's crimes and another

situation, based on defendant opening the door to such

questioning through his answers on direct examination (see People

v Fardan, 82 NY2d 638, 646 [1993]). The court warned defendant

that the line of questioning would open the door, and defendant

knowingly continued with his testimony on those topics, making it

only fair for the People to rebut any misleading impressions that

defendant created (see People v Heckstall, 45 AD3d 907, 909

[2007], lv denied 10 NY3d 766 [2008]).

Defendant was not entitled to an adverse inference charge

regarding the lack of audio on a portion of the video recording

of the first drug transaction. An adverse inference charge

informs the jury that it may draw an inference in favor of the

defendant because material evidence is missing, but such a charge

is meant for situations where the evidence has been lost or

destroyed by agents of the government (see People v Handy, 20

NY3d 663, 669-670 [2013]; People v Acevedo, 112 AD3d 985, 987

[2013], lv denied 23 NY3d 1017 [2014]). Here, the missing audio

portion never existed because the officer in charge of the

equipment testified that he mistakenly did not turn on the audio

until the transaction was underway. Under the circumstances,

County Court correctly determined that defendant was not entitled

to an adverse inference charge.

We have reviewed defendant's remaining contentions and find

them unpersuasive.
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Garry, Lynch and Clark, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court