| People v Stoneham |
| 2008 NY Slip Op 03860 [50 AD3d 1575] |
| April 25, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jeffrey W.Stoneham, Appellant. |
—[*1] Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Niagara County (Richard C. Kloch, Sr.,A.J.), rendered July 18, 2005. The judgment convicted defendant, upon a jury verdict, of robberyin the first degree and criminal possession of a weapon in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial ofrobbery in the first degree (Penal Law § 160.15 [3]) and criminal possession of a weaponin the third degree (§ 265.02 [1]). Contrary to the contention of defendant, County Court(Peter L. Broderick, Sr., J.) properly determined that the People established defendant'scompetency to stand trial by a preponderance of the evidence (see People v Aponte, 34 AD3d298 [2006], lv denied 8 NY3d 843 [2007]; People v Garrasi, 302 AD2d 981,982 [2003], lv denied 100 NY2d 538 [2003]; see generally People v Mendez, 1 NY3d 15, 19-20 [2003]).Although conflicting testimony was presented at the competency hearing, the court's findings areentitled to great deference (see Garrasi, 302 AD2d at 982; People v Brow, 255AD2d 904 [1998]), and the opinions of two court-appointed psychiatric experts and the court'sown opportunity to observe defendant during the judicial proceedings support the conclusion thatdefendant had a " 'sufficient present ability to consult with his lawyer with a reasonable degree ofrational understanding . . . and . . . a rational as well as factualunderstanding of the proceedings against him' " (Dusky v United States, 362 US 402, 402[1960]; see Mendez, 1 NY3d at 19).
We reject defendant's further contention that the showup identification procedure was undulysuggestive. The showup was conducted in geographical and temporal proximity to the crime(see generally People v Ortiz, 90 NY2d 533, 537 [1997]), and it was not rendered undulysuggestive by the fact that defendant was handcuffed and seated in a patrol car when he wasidentified (see People v Armstrong,11 AD3d 721, 722 [2004], lv denied 4 NY3d 760 [2005]). Finally, there is nosupport in the record for the contention of defendant that Supreme Court (Richard C. Kloch, Sr.,A.J.) acted vindictively in sentencing him (see People v Lewis, 292 AD2d 814, 815[2002], lv denied 98 NY2d 677 [2002]; see generally People v Pena, 50 NY2d400, 411-412 [1980], rearg denied 51 NY2d 770 [1980], cert denied 449 US1087 [1981]), and the sentence is not unduly harsh or severe. Present—Scudder, P.J.,Hurlbutt, Centra, Green and Gorski, JJ.