| People v Harris |
| 2009 NY Slip Op 05694 [64 AD3d 883] |
| July 9, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v FranklinHarris, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Malone Jr., J. Appeal from a judgment of the County Court of Schenectady County (Hoye,J.), rendered April 23, 2007, upon a verdict convicting defendant of the crime of burglary in thesecond degree.
In April 2005, a couple returned to their home in the City of Schenectady, SchenectadyCounty to find that it had been burglarized. While the victims were calling the police, defendantemerged from their house carrying a tote bag. The husband and a neighbor began to chase afterdefendant, who was apprehended by the police shortly thereafter and charged with burglary inthe second degree. Prior to trial, County Court conducted a combined Wade andHuntley hearing, after which it determined, among other things, that the crime sceneshowup identification of defendant was admissible. Thereafter, County Court (Drago, J.) granteddefense counsel's motion, pursuant to CPL article 730, for an order directing that defendant beexamined to determine his capacity to stand trial. Based upon the opinion of two psychiatricexaminers that defendant was not fit to proceed, the court adjudicated defendant to be anincapacitated person and ordered him to be committed to a psychiatric facility. Eventually,defendant was found fit to proceed and, following a jury trial, he was found guilty of burglary inthe second degree. County Court (Hoye, J.) subsequently sentenced defendant to 10 years inprison, followed by five years of postrelease supervision. Defendant appeals.[*2]
Initially, we are not persuaded that County Court (Hoye,J.) erred in denying defendant's motion to suppress the victim's showup identification of him.Showup identifications are permissible where the showup was "conducted in close geographicand temporal proximity to the crime . . . and the procedure used was not undulysuggestive" (People v Brisco, 99 NY2d 596, 597 [2003]; see People v Tillman, 57 AD3d1021, 1023 [2008]). Here, the identification of defendant was made at the scene of thecrime, approximately 10 to 15 minutes after the initial call to the police by the victims. Underthese circumstances, it cannot be said that the showup was unreasonable. Contrary to defendant'scontention, the fact that he arrived at the scene in a marked police vehicle and was presented tothe victim in handcuffs did not, as a matter of law, render the procedure unduly suggestive (see People v Mathis, 60 AD3d1144, 1146 [2009]; People vBrown, 46 AD3d 1128, 1130 [2007]).
Finally, defendant argues that after receiving conflicting reports from three psychiatricexaminers regarding his capacity to stand trial, County Court (Drago, J.) erred by not holding ahearing prior to adjudicating him to be incapacitated (see CPL 730.30 [4]). However,defendant was thereafter properly determined to be fit to proceed to trial pursuant to CPL 730.30(2) and the entry of that order renders defendant's instant challenge moot (see generallyMatter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]).
Mercure, J.P., Peters, Stein and Garry, JJ., concur. Ordered that the judgment is affirmed.