Opinion
2010-3328 K CR
04-09-2015
The People of the State of New York, Respondent, v. Yu Weng, Appellant.
PRESENT: : , WESTON and ELLIOT, JJ.
Appeal from a judgment of the Criminal Court of the City of New York, Kings County (John H. Wilson, J.), rendered October 25, 2010. The judgment convicted defendant, after a nonjury trial, of attempted promotion of prostitution in the fourth degree. The appeal from the judgment of conviction brings up for review the denial by the same court, after a hearing, of defendant's motion to suppress certain statements and physical evidence, and of the court's own motion to suppress identification evidence.
ORDERED that the judgment of conviction is affirmed.
Defendant was initially charged in an information with promoting prostitution in the fourth degree (Penal Law § 230.20 [1]). The information was later amended to charge attempted promoting prostitution in the fourth degree (Penal Law §§ 110.00, 230.20 [1]). At a hearing on defendant's Mapp/Dunaway motion, the arresting officer testified that, on June 11, 2010, pursuant to a police investigation of prostitution alleged to be occurring at 762 60th Street in Brooklyn, an undercover officer made a telephone call to "set up a deal for prostitution." Several minutes later, the arresting officer received a signal from the undercover officer that such an agreement had been made. The arresting officer, accompanied by other officers, knocked on the door of the apartment where the negotiations had occurred. He was admitted by the undercover officer, who immediately "pointed" to defendant to indicate that the latter was the "promoter" of prostitution. A postarrest search of defendant produced a set of keys which operated the locks on the apartment door and a rent receipt for the premises.
After the People rested their case at the hearing, the court, on its own motion, determined that the undercover officer's identification of defendant to the arresting officer was subject to Wade review. Over defendant's objection, the court granted the People's request to reopen the hearing to produce the undercover officer. The undercover officer testified to his face-to-face negotiation with defendant and corroborated the arresting officer's testimony, including the confirmatory identification. The court denied defendant's motion to suppress, and defendant now appeals, arguing that the court should not have allowed the People to reopen the suppression hearing to offer testimony as to the circumstances of the undercover officer's identification. We disagree.
A Wade hearing is unnecessary where an undercover police officer conducts a face-to-face criminal transaction and immediately thereafter confirms that another officer is arresting the right person (People v Boyer, 6 NY3d 427, 432 [2006]; People v Allah, 57 AD3d 1115, 1116-1 117 [2008]), because, in such situations, "there is no risk of misidentification" ( Boyer, 6 NY3d at 432; see also People v Wharton, 74 NY2d 921, 922 [1989] [ Wade hearings are unnecessary in confirmatory contexts because they are "not of a kind ordinarily burdened or compromised by forbidden suggestiveness"]). Here, the "buy" of sexual favors for a price negotiated by defendant, which was followed within minutes by the arrest of defendant, who had never left the undercover officer's vicinity, was confirmatory. In any event, since no decision on the merits had been rendered, the court did not improvidently exercise its discretion in reopening the hearing to permit the undercover officer to testify on the issue of identification ( see People v Boone, 30 AD3d 535, 535 [2006]; People v Suphal, 7 AD3d 547 [2004]; People v Francis, 15 Misc 3d 133[A], 2007 NY Slip Op 50714[U] [App Term, 2d & 11th Jud Dists 2007]).
We also reject defendant's contention on appeal that a complaint forwarded from the Mayor's office about prostitution activity at the location of defendant's arrest represented unproduced Rosario material. The prosecution never represented that it intended to produce the author of the complaint as a witness (see CPL 240.45 [1] [a]). Even if the complaint were Rosario material, defendant's claim that the sanction was inadequate is not preserved for appellate review (People v Pena, 259 AD2d 350 [1999]). Nevertheless, defendant showed no "reasonable possibility that the non-disclosure materially contributed to the result of the trial or other proceeding" (CPL 240.75; e.g. People v Ward, 116 AD3d 989, 992 [2014]).
We further find no error with respect to the court's refusal to allow the defense to re-call the undercover officer the day after his cross-examination had concluded. The cross-examination had been completed without improper restriction (People v Montes, 16 NY3d 250, 253 [2011]), and, other than stating that he had "additional questions," defense counsel articulated no basis for further questioning. In these circumstances, the court providently exercised its discretion in refusing to disturb the orderly presentation of proof by re-calling the undercover officer (see Feldsberg v Nitschke, 49 NY2d 636, 643-644 [1980]; People v Gibson, 106 AD3d 834, 835 [2013]; People v Parnell, 34 Misc 3d 77, 81 [App Term, 2d, 11th & 13th Jud Dists 2011]).
Finally, defendant's claim that the evidence was legally insufficient to establish the offense of attempted promoting prostitution in the fourth degree is unpreserved for appellate review, given that the defense made only a general motion to dismiss at the close of the People's case (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 492 [2008]; People v Gray, 86 NY2d 10, 18 [1995]). In the exercise of our authority to determine whether a conviction is against the weight of the evidence (CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we find that the credible testimony of the witnesses at this nonjury trial established the elements of the offense charged (see People v Spencer, 95 AD3d 781, 782 [2012]; People v Brown, 74 AD3d 1748, 1749 [2010]; People v Gui Lui, 24 Misc 3d 136[A], 2009 NY Slip Op 51505[U] [App Term, 2d, 11th & 13th Jud Dists 2009]) and that the verdict of guilt was not against the weight of the evidence.
Accordingly, the judgment of conviction is affirmed.
Pesce, P.J., Weston and Elliot, JJ., concur.
Decision Date: April 09, 2015