| People v Rivera |
| 2009 NY Slip Op 00716 [59 AD3d 467] |
| February 3, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Richard Rivera, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Sholom J. Twersky,Evan M. Newman, and Christian A. Cavallo of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (McKay, J.),rendered October 18, 2005, convicting him of criminal possession of a weapon in the seconddegree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial,after a hearing, of those branches of the defendant's omnibus motion which were to suppresscertain statements made to law enforcement officials, physical evidence, and identificationtestimony.
Ordered that the judgment is affirmed.
The credibility determinations of a hearing court are entitled to great deference on appealand will not be disturbed unless clearly unsupported by the record (see People v Graham, 54 AD3d1056 [2008]; People v Wynter,48 AD3d 492 [2008]). Contrary to the defendant's contention, the hearing court properlydeclined to suppress statements he made in response to the question of a police officer whostopped his vehicle after observing a violation of the Vehicle and Traffic Law, and a handgunwhich was recovered from his vehicle as a result of those statements. On appeal, the defendantacknowledges that the stop of his vehicle was authorized on the basis of the traffic violation (see e.g. People v Leiva, 33 AD3d1021, 1022 [2006]). The testimony presented at the suppression hearing established that thedefendant was not in custody within the meaning of Miranda v Arizona (384 US 436[1966]) at the time the officer asked him [*2]whether he hadanything in his vehicle which might endanger the officer's safety (see People v Parris, 26 AD3d 393,394-395 [2006]; People v Myers, 1AD3d 382, 383 [2003]; People v Mathis, 136 AD2d 746, 747-748 [1988]).Moreover, the officer's inquiry was justified by reasonable suspicion that criminal activity wasafoot and an articulable basis for the officer to fear for his safety (see People v Torres, 74NY2d 224, 226 [1989]; People v Chestnut, 51 NY2d 14, 21-22 [1980]; People vGuarino, 267 AD2d 324, 325 [1999]; People v Bradford, 162 AD2d 457, 457-458[1990]; cf. People v Woods, 189 AD2d 838, 842-843 [1993]). In response to the officer'squestion, the defendant stated that he had a firearm in his vehicle.
Additionally, the hearing court properly declined to suppress identification testimony.Showup procedures are permissible when they are conducted in close spatial and temporalproximity to the commission of the crime for the purpose of securing a prompt and reliableidentification (see People v Duuvon, 77 NY2d 541, 544 [1991]; People v Gilyard, 32 AD3d 1046[2006]; People v Pierre, 2 AD3d461, 462 [2003]). Here, the showup, which was conducted at the site of the crime shortlyafter the incident occurred, was not unduly suggestive (see People v Duuvon, 77 NY2dat 545; People v Rowlett, 193 AD2d 768 [1993]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Rivera, J.P., Miller, Carni and McCarthy, JJ., concur.