Submitted - September 28, 2018
Michael A. Fiechter, Bellmore, NY, for appellant.
Madeline Singas, District Attorney, Mineola, NY (Kevin C.
King and John B. Latella of counsel), for respondent.
REINALDO E. RIVERA, J.P. LEONARD B. AUSTIN COLLEEN D. DUFFY
BETSY BARROS, JJ.
DECISION & ORDER
by the defendant from a judgment of the Supreme Court, Nassau
County (Meryl J. Berkowitz, J.), rendered September 28, 2016,
convicting him of robbery in the first degree (two counts),
robbery in the second degree (three counts), and criminal
possession of a weapon in the third degree, after a nonjury
trial, and imposing sentence. The appeal brings up for review
the denial, after a hearing pursuant to a stipulation in lieu
of motions (Jerald S. Carter, J.), of the suppression of
that the judgment is affirmed.
defendant's contention that the police lacked probable
cause to arrest him is unpreserved for appellate review
(see CPL 470.05; People v. Williams, 160
A.D.3d 665, 666). In any event, the record demonstrates that
the police had probable cause to arrest the defendant
(see People v. Williams, 160 A.D.3d at 666;
People v. Bellow, 255 A.D.2d 450; People v.
Haynes, 251 A.D.2d 595).
procedures 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" (People v. Johnson, 104 A.D.3d 705,
705 [internal quotation marks omitted]). Here, the hearing
testimony of the police officers demonstrated that the showup
procedures occurred in close spatial and temporal proximity
to the commission of the crimes for the purpose of securing a
prompt and reliable identification (see People v.
Santana, 159 A.D.3d 926, 927; People v.
Santiago, 132 A.D.3d 1015, 1016). Further, contrary to
the defendant's contention, the possibility that the
eyewitnesses may have overheard the police radio
transmissions regarding the defendant's arrest did not
render the showup procedures unduly suggestive. Notably, two
of the eyewitnesses testified that they did not hear the
actual content of the transmissions. And, while the third
eyewitness testified that he overheard that the individuals
being detained had been found wearing sunglasses, the hearing
testimony established that the defendant was not wearing
sunglasses at the time of the showup (see People v.
Huerta, 141 A.D.3d 602, 603). The showup procedures also
were not rendered unduly suggestive simply because the
eyewitnesses knew that the police had a suspect in custody
(see People v. Baez, 175 A.D.3d 553; People v.
Bartlett, 137 A.D.3d 806; People v. Charles,
110 A.D.3d 1094, 1096; People v. Berry, 50 A.D.3d
event, as the Supreme Court found, the eyewitnesses'
observations of the defendant during the robberies gave them
an independent source upon which to make their in-court
identifications (see People v. Currie, 117 A.D.3d
1074, 1075; People v. Henderson, 170 A.D.2d 532,
533; People v. Clark, 155 A.D.2d 548). The
defendant's contention that the eyewitnesses'
in-court identification of him was "tainted"
because the eyewitnesses did not mention his facial scar is
without merit. The defendant describes his scar as being
situated approximately one inch under the far corner of his
left eye and approximately an inch in length from his eye
toward the back of his head. The eyewitnesses'
descriptions of the defendant, after observing him while in
close proximity, in a well-lit setting, for a period of 30
seconds to 2 minutes, were sufficiently detailed and accurate
as to the defendant's race, gender, height, build, and
age. Moreover, the eyewitnesses testified at the pretrial
hearing that the defendant was wearing sunglasses at the time
of the commission of the crimes (see People v.
Small, 110 A.D.3d 1106, 1106-1107; People v.
Allah, 283 A.D.2d 436, 436). Further, while the
defendant had an absolute right to waive his presence at the
independent source phase of the Wade hearing
(United States v. Wade, 388 U.S. 218), the hearing
court's refusal to allow the defendant to absent himself
in these circumstances was harmless error (see Matter of
Eric W., 182 A.D.2d 439; People v. Clark, 155
A.D.2d 548, 549).
defendant contends that his waiver of the right to a jury
trial was invalid. The defendant's claim "is to be
proved, if at all, by facts outside the trial record in a
proceeding maintainable under CPL 440.10" (People v.
Johnson, 51 N.Y.2d 986, 988).
sentence imposed was not excessive (see People v.
Suitte, 90 A.D.2d 80).
defendant's remaining contentions do not ...