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People v. Dabreo

Supreme Court of New York, Second Department

July 24, 2013

The People of the State of New York, respondent,
v.
Keiron Dabreo, appellant. Ind. No. 5147/09

Heriberto Cabrera, Brooklyn, N.Y., for appellant.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Camille O'Hara Gillespie, Rebecca Weber, and Eugene A. Sokoloff of counsel), for respondent.

RANDALL T. ENG, P.J., RUTH C. BALKIN, SHERI S. ROMAN, ROBERT J. MILLER, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dowling, J.), rendered April 26, 2011, convicting him of attempted robbery in the second degree and assault in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Jacobson, J.), of that branch of the defendant's omnibus motion which was to suppress identification testimony.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the identification procedure during which two friends of the victim identified the defendant was not unduly suggestive (see People v Clark, 85 N.Y.2d 886, 888; People v Walker, 285 A.D.2d 481; People v Burgos, 246 A.D.2d 394; People v Spruill, 232 A.D.2d 278, 279). The suppression hearing transcript reflects that mere minutes after the crime occurred and within three blocks of the crime scene, the two friends spontaneously identified the defendant while canvassing the area with police officers. Moreover, according to the uncontradicted testimony of an officer who participated in the canvass, the two friends chose the direction of the canvass.

Similarly without merit is the defendant's contention that a showup procedure involving a third friend of the victim was unduly suggestive. Through the hearing testimony of two police officers, the People provided a detailed account of the circumstances of the showup and presented evidence that the showup was conducted in close spatial and temporal proximity to the commission of the crime (see People v Ortiz, 90 N.Y.2d 533, 537; People v Duuvon, 77 N.Y.2d 541, 544-545; People v Traylor, 69 A.D.3d 659, 660; People v Stevens, 43 A.D.3d 1088, 1089). Thus, the burden shifted to the defendant to establish that the identification procedure was unduly suggestive (see People v Ortiz, 90 N.Y.2d at 537). The defendant did not meet his burden (see People v Crumble, 43 A.D.3d 953, 953; People v Gil, 21 A.D.3d 1120, 1121; People v Rubi, 19 A.D.3d 139, 140; People v Williams, 15 A.D.3d 244, 246).

The sentence imposed was not excessive (see People v Suitte, 90 A.D.2d 80).

ENG, P.J., BALKIN, ROMAN and MILLER, JJ., concur.


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