| People v Davis |
| 2008 NY Slip Op 00866 [48 AD3d 1120] |
| February 1, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Bobby L.Davis, Appellant. (Appeal No. 1.) |
—[*1] Michael C. Green, District Attorney, Rochester (Leslie E. Swift of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Joseph D. Valentino, J.),rendered March 18, 2004. The judgment convicted defendant, upon his plea of guilty, of burglaryin the second degree and petit larceny.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon hisplea of guilty of burglary in the second degree (Penal Law § 140.25 [2]) and petit larceny(§ 155.25) and, in appeal No. 2, he appeals from a judgment convicting him upon his pleaof guilty of criminal mischief in the fourth degree (§ 145.00 [1]). Both judgments arosefrom one incident in which defendant allegedly entered the home of the victim and stole some ofthe victim's property and damaged other property. We reject the contention of defendant that thepolice lacked probable cause to arrest him. A police officer observed defendant carrying a whiteplastic bag two blocks from the scene of the reported burglary shortly after it was reported, anddefendant matched the victim's description of the man seen by the victim walking in the victim'sdriveway and carrying a bag full of items. In addition, defendant was evasive and, indeed, he fledfrom the police when they attempted to speak to him in the driveway of a house where heclaimed to reside. It is well settled that "a defendant's flight in response to an approach by thepolice, combined with other specific circumstances indicating that the suspect may be engaged incriminal activity, may give rise to reasonable suspicion, the necessary predicate for policepursuit" (People v Sierra, 83 NY2d 928, 929 [1994]; see People v Nesmith, 289AD2d 1049 [2001], lv denied 97 NY2d 758 [2002]). We thus conclude that the policewere entitled to pursue defendant (seePeople v Martinez, 39 AD3d 1159, 1160 [2007], lv denied 9 NY3d 867 [2007]).The police then observed defendant emerge from behind another property on a bicycle that thepolice determined did not belong to him, and he abandoned the bicycle while maintainingpossession of the bag, from which items had fallen. We conclude that the police then hadprobable cause to arrest defendant, even prior to the showup identification by the victim (seePeople v Brnja, 50 NY2d 366, 372-374 [1980]; People v Jackson, 272 AD2d 991[2000], lv denied 95 NY2d 866 [2000]).
Also contrary to defendant's contention, the showup identification procedure, which was[*2]conducted in geographic and temporal proximity to the crime,was not unduly suggestive (see People v Ortiz, 90 NY2d 533, 537 [1997]; People vDuuvon, 77 NY2d 541, 544 [1991]). The fact that defendant was removed from a police cardoes not render the showup identification procedure unduly suggestive (see People v Ponder, 19 AD3d1041, 1043 [2005], lv denied 5 NY3d 809 [2005]), nor does the fact that he was inhandcuffs and was standing next to two police officers render it unduly suggestive (see People v Delarosa, 28 AD3d1186, 1187 [2006], lv denied 7 NY3d 811 [2006]). Finally, we reject the contentionof defendant that Supreme Court erred in refusing to suppress his statements to the police.Although defendant contended that his physical condition prevented him from validly waivinghis Miranda rights, the testimony presented by the People at the suppression hearingestablished that defendant did not appear to be intoxicated and that he was able to understand andrespond to the questions posed to him. Great deference is afforded the findings of the suppressioncourt (see People v Prochilo, 41 NY2d 759, 761 [1977]), and we conclude that the courtproperly determined that defendant "was not intoxicated to such a degree that he was incapableof voluntarily, knowingly, and intelligently waiving his Miranda rights" (People vDowney, 254 AD2d 794, 795 [1998], lv denied 92 NY2d 1031 [1998]).Present—Hurlbutt, J.P., Gorski, Martoche, Lunn and Peradotto, JJ.