Atwell, East Hampton, NY, for appellant.
J. Spota, District Attorney, Riverhead, NY (Rosalind C. Gray
of counsel), for respondent.
C. DILLON, J.P., L. PRISCILLA HALL, SYLVIA O. HINDS-RADIX,
VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
by the defendant from a judgment of the County Court, Suffolk
County (Cohen, J.), rendered May 29, 2014, convicting him of
robbery in the first degree and resisting arrest, upon a jury
verdict, and sentencing him to a determinate term of
imprisonment of 15 years, to be followed by a period of
postrelease supervision of 5 years, on the conviction of
robbery in the first degree, to run concurrently with a
definite term of incarceration of 1 year on the conviction of
resisting arrest. The appeal brings up for review the denial,
after a hearing, of those branches of the defendant's
omnibus motion which were to suppress identification evidence
and his statements to law enforcement officials.
that the judgment is modified, as a matter of discretion in
the interest of justice, by reducing the sentence imposed on
the conviction of robbery in the first degree from a
determinate term of imprisonment of 15 years, to be followed
by a period of postrelease supervision of 5 years, to a
determinate term of imprisonment of 10 years, to be followed
by a period of postrelease supervision of 5 years; as so
modified, the judgment is affirmed.
to the defendant's contention, the County Court properly
denied his motion to dismiss the indictment. The grand jury
instructions were sufficient and did not impair the integrity
of the proceeding (see People v Calbud, 49 N.Y.2d
389; People v Burch, 108 A.D.3d 679, 681).
County Court properly denied that branch of the
defendant's omnibus motion which was to suppress
identification evidence. The defendant was identified by the
complainant at a showup procedure conducted near the crime
scene. While showup procedures are generally disfavored, they
are permissible, even in the absence of exigent
circumstances, when they are spatially and temporally
proximate to the commission of the crime and not unduly
suggestive (see People v Brisco, 99 N.Y.2d 596, 597;
People v Ortiz, 90 N.Y.2d 533, 537; People v
Duuvon, 77 N.Y.2d 541, 543). Here, the evidence adduced
at the suppression hearing established that the showup took
place 30 minutes after the crime and a few blocks away from
the crime scene (see People v Loo, 14 A.D.3d 716;
People v Ponce de Leon, 291 A.D.2d 415; People v
Rodney, 237 A.D.2d 541, 541-542; People v
Thompson, 215 A.D.2d 604, 605). The People met their
" initial burden of going forward to establish the
reasonableness of the police conduct and the lack of any
undue suggestiveness in a pretrial identification
procedure'" through the testimony of police officers
who received the report of the crime, transported the
complainant to the showup location, and secured the defendant
during the showup (People v Ortiz, 90 N.Y.2d at 537,
quoting People v Chipp, 75 N.Y.2d 327, 335, cert
denied 498 U.S. 833; see People v Mitchell, 185
A.D.2d 249, 250; People v Sanchez, 178 A.D.2d 567,
568). In turn, the defendant failed to satisfy "the
ultimate burden of proving that [the] showup procedure [wa]s
unduly suggestive and subject to suppression"
(People v Ortiz, 90 N.Y.2d at 537). The
defendant's contention that the complainant may have been
improperly influenced at the time of the identification is
purely speculative (see People v Berry, 50 A.D.3d
1047, 1048-1049; People v Dottin, 255 A.D.2d 521).
Furthermore, the fact that the defendant was handcuffed and
in the presence of police officers does not render the showup
unduly suggestive (see People v Mack, 135 A.D.3d
962, 963; People v Jerry, 126 A.D.3d 1001, 1002;
People v Charles, 110 A.D.3d 1094, 1096; People
v Gonzalez, 57 A.D.3d 560, 561; People v Berry,
50 A.D.3d 1047; People v Jay, 41 A.D.3d 615).
the County Court properly denied that branch of the
defendant's omnibus motion which was to suppress his
statements to law enforcement officials. The evidence adduced
at the hearing established that the subject statements were
made in the context of a brief conversation between the
defendant and a detective during the booking process. The
statements were not made in response to express questioning
or its functional equivalent (see People v Acevedo,
258 A.D.2d 140; People v Langston, 243 A.D.2d 728;
cf. People v Ferro, 63 N.Y.2d 316), and the brief
exchange was not likely to elicit an incriminating response
(see People v Carlos, 139 A.D.3d 1080).
the evidence in the light most favorable to the prosecution
(see People v Contes, 60 N.Y.2d 620, 621), we find
that it was legally sufficient to establish the
defendant's guilt beyond a reasonable doubt. Moreover, in
fulfilling our responsibility to conduct an independent
review of the weight of the evidence (see CPL
470.15; People v Danielson, 9 N.Y.3d 342), we
nevertheless accord great deference to the fact-finder's
opportunity to view the witnesses, hear the testimony, and
observe demeanor (see People v Mateo, 2 N.Y.3d 383,
410; People v Bleakley, 69 N.Y.2d 490, 495). Upon
reviewing the record here, we are satisfied that the verdict
of guilt was not against the weight of the evidence (see
People v Romero, 7 N.Y.3d 633).
sentence imposed was excessive to the extent indicated
defendant's remaining contentions are without merit.
HINDS-RADIX and BRATHWAITE NELSON, JJ., concur.
DILLON, J.P., concurs in part and dissents in part, and votes
to affirm the judgment, with the following memorandum:
his conviction of robbery in the first degree, the defendant
could have received a sentence ranging from 5 to 25 years
imprisonment (see Penal Law 70.02). Considering the
circumstances of the offense and the fact that the defendant
had previously been convicted of a robbery in Florida, the
County Court's imposition of a 15-year sentence, in the
middle of the permissible range, was not unduly harsh ...