New trial granted in drug case

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A Syracuse man will get a new trial because of a problem with a police identification.

Kevin Reeves, 41, was convicted in January 2013 of third-degree criminal sale of a controlled substance and third-degree criminal possession of a controlled substance and sentenced to up to seven years and six months in prison.

Reeves appealed and the Appellate Division of state Supreme Court, Fourth Department, sent the case back to Onondaga County Court for a hearing on the reliability of the police identification of him as the person who sold cocaine to an undercover officer in the Onondaga County Sheriff’s Office.

A confidential informant set up a meeting between two officers and a man he claimed was Kevin Reeves to buy cocaine in April 2011. One of the officers claimed he looked at a photograph to identify the suspect before and after the drug deal.

Reeves was not arrested until May 2012 by an officer in the Syracuse Police Department based on a warrant. That officer had no connection to the undercover drug buy in April 2011.

The defense filed a pretrial motion for any photographs of the defendant shown to witnesses and the prosecution replied: “None known to exist,” according to a June 2016 Fourth Department decision in an initial appeal.

The defense moved to suppress the identification testimony and asked for a hearing on the admissibility of the testimony. Onondaga County Court Judge Donald E. Todd denied the motions and allowed the testimony.

In the 2016 decision, the Fourth Department sent the case back to Todd for a suppression hearing, mainly because of the amount of time that lapsed between the alleged drug buy, the arrest and the trial.

“That lapse of time is in stark contrast to the typical situation where an undercover officer identifies the arrestee at the police station contemporaneously with the drug transaction,” the Fourth Department wrote in the 2016 decision.

After the hearing Todd still denied the motion to suppress the identification testimony. Reeves appealed that decision, which the Fourth Department reversed on Friday and granted a new trial.

“The burden of going forward is on the people in any type of suppression hearing. They can meet that initial burden in many different ways. Here they just didn’t. They presented no evidence whatsoever,” said Philip Rothschild, an attorney at the Frank H. Hiscock Legal Aid Society in Syracuse, who handled Reeve’s appeal.

At the hearing, the prosecution tried to introduce the photograph that was allegedly used by the undercover officer, but Todd refused to allow it because it was not produced during discovery and the prosecution “expressly denied the existence of any photographs in the People’s possession,” the Fourth Department wrote.

The officer testified that he was given the name “Kevin Reeves” by a confidential informant, who did not testify. But the officer could not recall if the informant gave him any identifying factors about Reeves, such as height, description, or skin color.

The officer testified that he entered the name “Kevin Reeves” into a law enforcement computer database and that his search resulted in a photograph that he printed and viewed.

The officer did not testify about what search criteria he used, how many photos he viewed in response to his search criteria, or how he may have distinguished among multiple photographs generated by his search.

The majority included justices Edward D. Carni, Brian F. DeJoseph, Patrick H. NeMoyer, and Shirley Troutman. Justice Stephen K. Lindley dissented in the recent decision and also in the June 2016 decision.

“I do not believe that there is any legal basis to suppress identification testimony of a defendant based on the alleged unreliability of the witness’s identification unless the identification is the product of unduly suggestive police procedures,” Lindley wrote.

“I do not find anything unreliable about the identification testimony at issue here. The undercover officer who purchased cocaine from defendant looked at a photograph of defendant approximately 15 to 20 minutes before the transaction and then again 10 minutes afterward. In my view, that was a reliable way for the undercover officer to identify the person who sold cocaine to him,” Lindley wrote.

Assistant Onondaga County District Attorney James P. Maxwell, who handled the appeal, declined to comment.