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People v. Arce

Supreme Court of New York, Third Department

May 11, 2017

ANGEL ARCE, Appellant.

          Calendar Date: March 28, 2017

          David M. Kaplan, Penfield, for appellant.

          Matthew VanHouten, District Attorney, Ithaca (Gary Surdell of counsel), for respondent.

          Before: Garry, J.P., Lynch, Rose, Clark and Aarons, JJ.


          ROSE, J.

         Appeal from a judgment of the County Court of Tompkins County (Rowley, J.), rendered August 1, 2014, upon a verdict convicting defendant of the crimes of burglary in the second degree (two counts), criminal mischief in the fourth degree, criminal possession of stolen property in the fifth degree and petit larceny.

         Responding to a 911 call reporting a burglary at an occupied residence, a police officer observed defendant, who closely matched the description of the perpetrator, walking a short distance away from the scene of the crime. Defendant was detained and handcuffed, as he was known to the officer as someone who had been physically combative with the police in the past. A few minutes later, an occupant of the residence who had been an eyewitness to the burglary arrived and positively identified defendant as the perpetrator. As a result, defendant was arrested and a subsequent search of his person revealed, among other things, jewelry belonging to one of the occupants of the residence. Defendant was thereafter charged by indictment with burglary in the second degree (two counts), criminal mischief in the fourth degree, criminal possession of stolen property in the fifth degree and petit larceny. Following a Wade hearing, County Court denied defendant's request to suppress testimony regarding the pretrial identification and the items discovered during the search of his person. A jury then convicted him as charged, and he was subsequently sentenced as a second violent felony offender to an aggregate prison term of eight years, followed by five years of postrelease supervision. He now appeals.

         Defendant first contends that the identification evidence and the items found on his person should have been suppressed because his initial detention was unlawful and the use of handcuffs transformed the detention into a full-blown arrest requiring probable cause. Although facts were adduced at the suppression hearing regarding both his initial detention and the use of handcuffs, defendant concedes that he failed to articulate any argument as to the legality of these actions before County Court, thereby rendering this argument unpreserved for our review (see People v Kindred, 100 A.D.3d 1038, 1038-1039 [2012], lv denied 21 N.Y.3d 913 [2013]; People v Jones, 8 A.D.3d 897, 898 [2004], lv denied 3 N.Y.3d 708');">3 N.Y.3d 708 [2004]). In any event, were we to review this argument, we would find that it is without merit inasmuch as the record reflects that the seizure of defendant was made on the basis of reasonable suspicion that he was the perpetrator of the burglary (see People v Ford, 110 A.D.3d 1368, 1371 [2013], lv denied 24 N.Y.3d 1043');">24 N.Y.3d 1043 [2014]; People v Robinson, 101 A.D.3d 1245, 1245-1246 [2012], lv denied 20 N.Y.3d 1103');">20 N.Y.3d 1103 [2013]; People v Turner, 37 A.D.3d 874, 876 [2007], lv denied 8 N.Y.3d 991');">8 N.Y.3d 991 [2007]), and that the police officer's use of handcuffs was proper under the circumstances and did not transform the detention into an arrest requiring probable cause (see People v Franqueira, 143 A.D.3d 1164, 1166 [2016]; People v Robinson, 121 A.D.3d 1405, 1409 [2014], lv denied 24 N.Y.3d 1221');">24 N.Y.3d 1221 [2015]; People v Gatling, 38 A.D.3d 239, 239-240 [2007], lv denied 9 N.Y.3d 865');">9 N.Y.3d 865 [2007]; see generally People v Allen, 73 N.Y.2d 378, 379-380 [1989]).

         Defendant also contends that the showup identification was unduly suggestive and, therefore, County Court erred in denying his motion to suppress the identification testimony. We disagree. The testimony from the Wade hearing established that the showup occurred during daylight, approximately 5 to 10 minutes after the eyewitness called 911 to report the burglary and within two to three blocks of the crime scene. Although defendant was handcuffed and standing between two police officers when the eyewitness was driven by for the identification, the police officer who transported the eyewitness testified that, from the eyewitness' vantage point in the backseat of the police car, the eyewitness would not have known that defendant was handcuffed. In light of the foregoing, we find that the showup identification "was not unduly suggestive considering the seamless chain of events from defendant's crime to apprehension to the identification, and the close geographic and temporal proximity to the crime" (People v Brown, 46 A.D.3d 1128, 1130 [2007] [internal quotation marks and citation omitted]; accord People v Coleman, 144 A.D.3d 1197, 1198 [2016]; see People v Franqueira, 143 A.D.3d at 1166). Accordingly, County Court properly denied defendant's motion to suppress.

         We take a different view of defendant's contention that County Court erred in requiring his legs to be shackled throughout the trial. It is well settled that "'[a] defendant has the right to be free of visible shackles [during trial], unless there has been a case-specific, on-the-record finding of necessity'" (People v Best, 19 N.Y.3d 739, 743 [2012], quoting People v Clyde, 18 N.Y.3d 145, 153 [2011], cert denied 566 U.S. 944');">566 U.S. 944 [2012]; see Deck v Missouri, 544 U.S. 622, 624 [2005]; People v Alexander, 127 A.D.3d 1429, 1432 [2015], lv denied 25 N.Y.3d 1197');">25 N.Y.3d 1197 [2015]). Here, the record reflects that defendant appeared throughout the trial in leg shackles and that, despite black draping around the defense table, he twice participated in side bar conversations during voir dire, thereby suggesting to us that prospective jurors were able to view defendant's shackled legs. As justification for the use of leg shackles, County Court stated that defendant was "in the custody of state corrections" and "that's the level of security that I require under these circumstances." While defendant did not, at any point thereafter, request that a curative instruction be given, we must agree that County Court, in the first instance, erred inasmuch as its on-the-record explanation fell short of the type of case-specific reasoning required to explain why defendant, in particular, needed to be restrained (see People v Whitehead, 119 A.D.3d 1080, 1082 [2014], lv denied 24 N.Y.3d 1048');">24 N.Y.3d 1048 [2014]; compare People v Goldston, 126 A.D.3d 1175, 1177-1178 [2015], lv denied 25 N.Y.3d 1201 [2015]; People v Robinson, 64 A.D.3d 803, 803-804 [2009]; People v Allaway, 13 A.D.3d 715, 716 [2004]; People v Stokes, 290 A.D.2d 71, 74 [2002], lv denied 97 N.Y.2d 762');">97 N.Y.2d 762 [2002], cert denied 537 U.S. 859');">537 U.S. 859 [2002]). However, upon our review of the entire record, we are satisfied that this error was harmless inasmuch as the evidence of defendant's guilt was overwhelming and "there is no reasonable possibility that [this error] affected the outcome of the trial" (People v Best, 19 N.Y.3d at 744-745; see People v Clyde, 18 N.Y.3d at 153-154; People v Whitehead, 119 A.D.3d at 1082; People v Morillo, 104 A.D.3d 792, 793-794 [2013], lv denied 22 N.Y.3d 1201');">22 N.Y.3d 1201 [2014]).

         Finally, in light of the fact that defendant committed the instant crimes while he was on parole for a prior burglary conviction and that his sentence was only one year more than the minimum sentence required by law (see Penal Law §§ 70.02 [1] [b]; 70.04 [3] [b]; 140.25), we find no abuse of discretion or extraordinary circumstances that would warrant disturbing the sentence imposed (see People v Cioto, 80 A.D.3d 875, 877 [2011], lv denied 16 N.Y.3d 829');">16 N.Y.3d 829 [2011]; People v Mayerhofer, 283 A.D.2d 672, 675 [2001]). Defendant's remaining claims, including his assertion that he received the ineffective assistance of counsel, have been reviewed and determined to be lacking in merit.

          Garry, J.P., Lynch, Clark and ...

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