| People v Brown |
| 2007 NY Slip Op 09981 [46 AD3d 1128] |
| December 20, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Jesse K.Brown, Appellant. |
—[*1] John R. Trice, District Attorney, Elmira (John R. Thweatt of counsel), forrespondent.
Kane, J. Appeal from a judgment of the County Court of Chemung County (Hayden, J.),rendered July 8, 2005, convicting defendant upon his plea of guilty of the crime of robbery in thefirst degree.
Defendant brought a gun to a party and told the seven or eight people in attendance to puttheir money on the floor. When they did not comply, he fired two shots into the floor. Afterretrieving the money, defendant left the apartment and was captured by police almostimmediately. A grand jury indicted him on charges of robbery in the first degree (two counts),reckless endangerment in the first degree, and criminal possession of a weapon in the thirddegree (two counts). On the morning of trial, defendant pleaded guilty to one count of robbery inthe first degree in full satisfaction of the indictment, with the People agreeing to recommend aprison sentence of eight years. County Court, which clearly informed defendant that it would notbe bound by the People's sentence recommendation, imposed a prison sentence of 12 years withfive years of postrelease supervision. Defendant appeals.
County Court properly denied defendant's motion to suppress his statements to the police. Ata Huntley hearing, the People have the initial burden of proving that the defendant'sstatements were voluntary beyond a reasonable doubt, but the defendant bears the ultimateburden of proving that the statements were obtained in violation of his or her right to counsel orin some other illegal manner (see People v Rosa, 65 NY2d 380, 386-387 [1985];People v [*2]Mathis, 147 AD2d 851, 852 [1989], lvdenied 73 NY2d 1018 [1989]). In New York, the right to counsel indelibly attaches when acriminal proceeding is commenced or when the defendant has retained or requested a lawyer onthe matter (see People v West, 81 NY2d 370, 373-374 [1993]; People v Lyons, 4 AD3d 549, 551[2004]). Here, the officer who obtained defendant's statements testified that defendant was readhis Miranda rights, removed from a holding cell into a hallway, given food and drink, andwas not threatened. As defendant never requested a lawyer and no accusatory instrument wasfiled, nor was any formal judicial action taken, defendant's right to counsel did not attach prior tohim making his statements (see People v West, 81 NY2d at 373-374; see alsoCPL 1.20 [17]; People v Samuels, 49 NY2d 218, 221 [1980]; People v Coleman,43 NY2d 222, 225 [1977]). Defendant thus failed to establish his entitlement to suppression ofhis statements by proving that they were obtained illegally or in violation of his rights.
County Court also did not err in denying defendant's motion to suppress the pretrialidentification. While the prosecution bears the initial burden of establishing that the policeconduct was reasonable and the pretrial identification procedure lacked any unduesuggestiveness, the defendant bears the ultimate burden of proving that the procedure was undulysuggestive (see People v Chipp, 75 NY2d 327, 335 [1990], cert denied 498 US833 [1990]). Two witnesses from the party informed police that they could identify the individualwho fired shots at the party, a person they called Jesse. One of the witnesses stated that he knewJesse from school. Police transported defendant only 75 to 100 yards for the witnesses to viewhim shortly after the incident occurred, at which point both witnesses immediately identified himas the shooter. Although defendant was in handcuffs, near a police car and accompanied by atleast one officer, this showup identification was not unduly suggestive considering the seamlesschain of events from defendant's crime to apprehension to the identification, and the "closegeographic and temporal proximity to the crime" (People v Brisco, 99 NY2d 596, 597[2003]; see People v Duuvon, 77 NY2d 541, 544 [1991]; People v Starks, 37 AD3d 863,865 [2007]; People v August, 33AD3d 1046, 1048-1049 [2006], lv denied 8 NY3d 878 [2007]).
While no one present at the party was actually injured, defendant's violent actions put severallives in danger. Thus, despite his young age, minimal criminal history and substance abuseproblems, we will not disturb the sentence imposed by County Court (see People v Bonelli, 41 AD3d972, 974 [2007], lv denied 9 NY3d 921 [2007]; People v Dedmon, 10 AD3d 738, 739 [2004], lv denied 3NY3d 756 [2004]).
Cardona, P.J., Crew III, Mugglin and Rose, JJ., concur. Ordered that the judgment isaffirmed.