| People v Ryan |
| 2007 NY Slip Op 08597 [45 AD3d 1363] |
| November 9, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Rickey J.Ryan, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Patrick H. Fierro of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Joseph D. Valentino, J.),rendered June 25, 2004. The judgment convicted defendant, upon his plea of guilty, of robbery inthe second degree.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of robberyin the second degree (Penal Law § 160.10 [3]), defendant contends that Supreme Courterred in concluding that the police had reasonable suspicion to detain him prior to his arrest andthus erred in refusing to suppress evidence seized as a result of his arrest. We reject thatcontention. One police officer received a description of the person who stole the victim's vehiclefrom the victim herself, and another officer received a description of that person from a witnessto the crime. Both descriptions matched that of defendant, who was known by both of theofficers. Indeed, one of the officers was familiar with defendant based on approximately 20previous encounters with him while patrolling the neighborhood where the crime occurred.Approximately five hours after the incident, one of the two officers observed defendant in thevicinity of the crime scene and placed him in the back seat of the police vehicle, where heremained pending the viewing of a photo array by the witness. Upon learning that the witness hadidentified defendant from the photo array, the officer transported defendant to the police station.
We conclude that the police had the requisite reasonable suspicion to detain defendant brieflyin the police vehicle pending the witness's identification of defendant from the photo array (see People v Owens, 39 AD3d1260, 1261 [2007], lv denied 9 NY3d 849 [2007]; see also People v Padilla, 37 AD3d357, 360 [2007], lv denied 9 NY3d 879 [2007]). Also contrary to defendant'scontention, that brief detention in the police vehicle was not the equivalent of a de facto arrest(see Owens, 39 AD3d at 1261). The fact that defendant was handcuffed while seated inthe back of the police vehicle is not dispositive of the issue whether his detention amounted to anarrest (see People v Allen, 73 NY2d 378, 380 [1989]). In any event, even assuming,arguendo, that defendant was under arrest based on his detention in the police vehicle, weconclude on the record before us that [*2]defendant consented tobe seated in the back of the police vehicle, and "[c]onsent is a valid substitute for probable cause"(People v Hodge, 44 NY2d 553, 559 [1978]).
We reject the further contention of defendant that the photo array was unduly suggestivesolely on the ground that he was the only individual depicted with braided hair (see People v Powell, 26 AD3d 795[2006], lv denied 7 NY3d 793 [2006]). Here, defendant's braided hair did not "figure[ ]prominently" in the descriptions by the witness and the victim (cf. People v Moore, 143AD2d 1056 [1988]). We note in any event that the fact that the victim and the witness selecteddifferent individuals from the photo array further supports our conclusion that "the subjectsdepicted in the photo array are sufficiently similar in appearance so that the viewer's attention isnot drawn to any one photograph in such . . . a way as to indicate that the policewere urging a particular selection" (People v Quinones, 5 AD3d 1093, 1093 [2004], lv denied 3NY3d 646 [2004]). Present—Martoche, J.P., Centra, Peradotto, Green and Pine, JJ.