| People v Parker |
| 2008 NY Slip Op 03983 [50 AD3d 603] |
| April 29, 2008 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v KarimParker, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Alan Gadlin of counsel), forrespondent.
Judgment, Supreme Court, New York County (William A. Wetzel, J., at hearing; Arlene D.Goldberg, J., at plea and sentence), rendered April 24, 2006 convicting defendant of robbery inthe first degree, and sentencing him to a term of seven years, unanimously affirmed.
The court properly denied defendant's suppression motion. The police observed three men ina car engaging in a pattern of "casing"-type and otherwise suspicious behavior as well as trafficviolations, but did not initially stop the car and lost sight of it. Immediately thereafter, they heardradio broadcasts describing a gunpoint robbery committed by three men occupying a car bearingsome similarities to the car they had been observing. When the officers encountered the same carthey had seen before, given the close spatial and temporal factors, the police had, at the veryleast, reasonable suspicion that the occupants were involved in criminal activity, sufficient tojustify an ordinary, nonforcible automobile stop. The record establishes that as the officersapproached the car, and prior to any seizure going beyond a vehicular stop, they noticed that twoof the three occupants met specific descriptions that matched two of the three robbery suspects(especially with regard to one suspect's tattoos). At this point, the police clearly had probablecause to arrest the occupants (see Peoplev Garcia, 24 AD3d 308, 309 [2005], lv denied 6 NY3d 833 [2006]). In anyevent, even assuming for the sake of argument that the police forcibly removed the occupants atgunpoint before noticing that two of them fit the descriptions, the totality ofcircumstances at least provided reasonable suspicion justifying such action (see People vHicks, 68 NY2d 234, 238 [1986]), and such suspicion ripened into probable cause as soon asthe police noticed the resemblance of the men to the described robbery suspects.
After the police removed the occupants, they noticed a pistol in the car. Even assuming thatthis was not an open-view observation, it was justified under the automobile exception (seePeople v Blasich, 73 NY2d 673 [1989]), because there was probable cause to believe theoccupants had just committed a robbery involving a firearm. Even if, prior to the discovery of thepistol, the police still had no more than reasonable suspicion, a limited check of the car forweapons was still permissible since the circumstances posed a threat to the officers' safety(see People v Mundo, 99 NY2d 55 [2002]), and the presence of the weapon was anadditional basis for [*2]the lawful arrest of the occupants. Finally,even if at the time the robbery victims arrived to identify the suspects, the police still had onlyreasonable suspicion, the investigatory detention was still lawful, notwithstanding thehandcuffing of the suspects (see People v Allen, 73 NY2d 378 [1989]). Thus, under anyof the scenarios posited above, there was no Fourth Amendment violation, and no basis uponwhich to suppress any evidence as fruit of an unlawful seizure.
The showup identification of defendant, approximately 30 minutes after the crime, was notunduly suggestive. Both the use of a showup and the manner in which it was conducted werejustified by the exigencies of the case and the interest of prompt identification (see People vDuuvon, 77 NY2d 541 [1991]; People v Love, 57 NY2d 1023, 1024 [1982]). Whiledefendant cites a series of allegedly suggestive circumstances surrounding the showup, theoverall effect was not significantly greater than what is inherent in any showup (see People v Gatling, 38 AD3d239, 240 [2007], lv denied 9 NY3d 865 [2007]). Defendant offers no support for hisassertion that the police "could have conducted a prompt lineup," or any estimate of the delaythat would have resulted from efforts to locate three sets of suitable fillers. Concur—Tom,J.P., Mazzarelli, Andrias and Williams, JJ.