People v. Polenca

Appeal from a judgment of the County Court of Montgomery County (Aison, J.), rendered May 23, 1991, upon a verdict convicting defendant of the crime of criminal sale of a controlled substance in the third degree. Defendant’s conviction was based solely upon the trial testimony of State Police Investigator Patricia Donovan that she made an undercover purchase of cocaine from defendant in April 1989. Notably, Donovan did not have occasion to see defendant in person from the time of the alleged drug sale until January 3, 1991, nearly two years later. Although the statement was not responsive to the People’s inquiry and County Court gave a curative instruction before questioning continued, because there was a sharp factual issue concerning the identity of the person who made the drug sale, Donovan’s impermissible and highly prejudicial testimony concerning her photographic identification of defendant on the day following the sale requires reversal of the judgment of conviction (see, People v Lindsay, 42 NY2d 9; People v Wallace, 187 AD2d 998; People v Hines, 112 AD2d 316; People v Osgood, 89 AD2d 76, 82-83; cf., People v Hope, 190 AD2d 958, lv denied 81 NY2d 972). In our view, the dissent’s reliance upon People v Johnson (57 NY2d 969) for a contrary conclusion is misplaced. In Johnson, the defendant was arrested in close proximity to the 912 crime scene and a corporeal identification was made by the victim only minutes following commission of the offense (supra, at 971). As such, in that case, as in People v Hope (supra), identity was simply not at issue and harmless error analysis was appropriate. As a final matter, although the error would not of itself have required reversal, because there is to be a new trial we note that County Court erred in permitting evidence that the person identified as defendant had a pistol in his waistband at the time of the alleged sale, as it was not relevant to any issue in the case other than showing defendant’s propensity to commit the crime charged (see, People v Peters, 187 AD2d 883, lv denied 81 NY2d 891). Defendant’s remaining contentions, including those concerning County Court’s handling of the Wade hearing and determination that the photographic identification procedures were not suggestive and that Donovan had an independent basis for an in-court identification of defendant, have been considered and rejected. Crew III and Yesawich Jr., JJ., concur.