| People v Gonzalez |
| 2008 NY Slip Op 09617 [57 AD3d 560] |
| December 2, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JulioGonzalez, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Rhea A. Grob, and JudithC. Aarons of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Guzman, J.),rendered January 27, 2005, convicting him of assault in the first degree and criminal possession of acontrolled substance in the seventh degree, upon a jury verdict, and imposing sentence. The appealbrings up for review the denial, after a hearing (Partnow, J.), of that branch of the defendant's omnibusmotion which was to suppress identification testimony.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the hearing court properly denied that branch of hisomnibus motion which was to suppress the showup identification made by a witness to the assault nearthe scene of the crime. "While showup procedures are generally disfavored, they are permissible, evenin the absence of exigent circumstances, when they are spatially and temporally proximate to thecommission of the crime and not unduly suggestive" (People v Berry, 50 AD3d 1047, 1048 [2008]; see People v Brisco,99 NY2d 596, 597 [2003]; People v Ortiz, 90 NY2d 533, 537 [1997]; People vDuuvon, 77 NY2d 541, 543 [1991]). Here, there was evidence that the showup identificationtook place less than one hour after the crime and approximately three blocks away from the crimescene (see People v Berry, 50 AD3d1047, 1048 [2008]; People v Loo,14 AD3d 716 [2005]; People v Ponce de Leon, 291 AD2d 415 [2002]; Peoplev Rodney, 237 AD2d 541 [1997]; People v [*2]Thompson,215 AD2d 604, 605 [1995]). The People met their initial burden of establishing the reasonablenessof the police conduct and the lack of undue suggestiveness in the showup identification through thetestimony of the officers who transported the witness to the location of the showup and those wholocated and secured the defendant during the showup (see People v Ortiz, 90 NY2d at 537;People v Dottin, 255 AD2d 521 [1998]; People v Mitchell, 185 AD2d 249, 250[1992]).
The defendant failed to satisfy his burden of proving that the procedure was unduly suggestive(see People v Ortiz, 90 NY2d at 537). The fact that the defendant was handcuffed andstanding in front of a police car while in the presence of uniformed officers does not render the showupunduly suggestive (see People v Guy, 47AD3d 643, 643-644 [2008]; People vJay, 41 AD3d 615 [2007]; Peoplev Gilyard, 32 AD3d 1046 [2006]; People v Loo, 14 AD3d 716 [2005]; People v Pierre, 2 AD3d 461, 462[2003]; People v Grassia, 195 AD2d 607 [1993]).
Defense counsel advanced arguments consistent with the evidence presented at trial, and thedefendant was not denied the effective assistance of counsel (see People v Benevento, 91NY2d 708, 712 [1998]; People v Baldi, 54 NY2d 137, 147 [1981]; People v Ludwig,155 AD2d 558 [1989]; cf. People v Lee, 129 AD2d 587, 588 [1987]). The court wasnot required to conduct a competency hearing pursuant to CPL article 730 (see People v Tortorici,92 NY2d 757, 765 [1999], cert denied 528 US 834 [1999]; People v Simpson, 52 AD3d 846[2008]; People v Scivolette, 40 AD3d887, 888 [2007]).
Viewing the evidence in the light most favorable to the prosecution (see People v Contes,60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant's guilt beyonda reasonable doubt. In fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accord greatdeference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor(see People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004];People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we aresatisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]).
The defendant's remaining contentions are without merit. Miller, J.P., Dickerson, Leventhal andBelen, JJ., concur.