| People v Purdie |
| 2008 NY Slip Op 03093 [50 AD3d 347] |
| April 8, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Sidney Purdie, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Jared Wolkowitz of counsel), forrespondent.
Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered June 1, 2006,convicting defendant, after a jury trial, of burglary in the second degree and criminal trespass inthe second degree, and sentencing him, as a persistent violent felony offender, to an aggregateterm of 20 years to life, unanimously affirmed.
The court properly denied defendant's motion to suppress identification testimony. Thecircumstances of the showup identification, made in close proximity to the time and place of thecrime and as part of an unbroken chain of events, were not unduly suggestive (see People vBrisco, 99 NY2d 596 [2003];People v Gatling, 38 AD3d 239, 240 [2007], lv denied 9 NY3d 865 [2007]).Defendant's argument that the use of a showup was rendered improper by the fact that the policealready had probable cause to arrest is unpreserved and we decline to review it in the interest ofjustice. As an alternative holding, we also reject it on the merits (see People v Duuvon,77 NY2d 541, 545 [1991]; People v Santiago, 235 AD2d 229 [1997], lv denied89 NY2d 1040 [1997]).
The court's jury instruction on the permissible inference arising from recent, exclusivepossession of stolen property in the absence of a "believable innocent explanation" correctlystated the law (see People v Galbo, 218 NY 283, 290 [1916]), and the court properlydenied defendant's request that it omit the word "believable." Defendant's unelaborated requestdid not preserve his present claim that the use of that word shifted the burden of proof.Furthermore, to the extent defendant is arguing that when the court repeated this instruction inresponse to a note from the deliberating jury it was obligated to accompany it with a reminder asto the burden of proof, that claim is likewise unpreserved. We decline to review these latterclaims in the interest of justice. As an alternative holding, we also reject them on the merits.Neither the main nor the supplemental charge could have given the jury the impression that itwas defendant's [*2]burden to establish a believable innocentexplanation (see Barnes v United States, 412 US 837, 846-847 [1973]; People vMoro, 23 NY2d 496, 501-502 [1969]). Concur—Tom, J.P., Saxe, Nardelli andWilliams, JJ.