| People v Parris |
| 2010 NY Slip Op 00881 [70 AD3d 725] |
| February 2, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JasonParris, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and KarenWigle Weiss of counsel; Benjamin Heiss and Nathaniel Shafer on the brief), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Knopf, J.),rendered June 5, 2008, convicting him of burglary in the second degree (two counts) andresisting arrest, upon a jury verdict, and imposing sentence. The appeal brings up for review thedenial, after a hearing (McGann, J.), of those branches of the defendant's omnibus motion whichwere to suppress identification testimony and his statement to law enforcement officials.
Ordered that the judgment is affirmed.
The Supreme Court properly denied that branch of the defendant's omnibus motion whichwas to suppress identification testimony. The police properly detained the defendant for thepurpose of a showup procedure (seePeople v Gonzalez, 61 AD3d 775, 776 [2009]; People v Wilson, 5 AD3d 408, 409 [2004]; People vLargo, 282 AD2d 548, 549 [2001]). The showup procedure, which was conductedapproximately 40 minutes after the complainant observed the defendant and three to four blocksfrom where she initially observed the defendant, was permissible under the circumstances sinceit was "conducted in close spatial and temporal proximity to the commission of the crime for thepurpose of securing a prompt and reliable identification" (People v Cruz, 31 AD3d 660, 661 [2006]; see People vGonzalez, 61 AD3d at 766; People v Tislon, 279 AD2d 488 [2001]; People vRodney, 237 AD2d 541, 542 [1997]). Contrary to the defendant's contention, the showupprocedure was not unduly suggestive merely because the complainant viewed the defendantwhile he was handcuffed and in the vicinity of police officers (see People v Jackson, 59 AD3d637 [2009]; People v Rowlett, 193 AD2d 768 [1993]; People v Carbonaro,162 AD2d 459 [1990]; People v Burns, 133 AD2d 642, 643 [1987]).
The hearing court properly denied that branch of the defendant's omnibus motion which wasto suppress his written statement to law enforcement officials. The hearing court properly foundthat his statement was voluntarily made after he knowingly waived his Miranda rights ontwo occasions (see Miranda v Arizona, 384 US 436 [1966]; People v Osorio, 49 AD3d 562,563 [2008]). The defendant improperly relies on his trial testimony in support of his contentionthat his statement should have been suppressed on the ground that it was the product of threatsand physical harm (see People vCastellanos, 65 AD3d 555 [2009]).
The hearing court did not err in denying the defendant's motion for leave to renew thosebranches of his omnibus motion which were to suppress his statement and identificationtestimony, as the [*2]defendant failed to show that additionalpertinent facts had been discovered that would have affected the court's prior determination thatthe identification testimony and his statement were admissible (see CPL 710.40 [4];People v Gonzalez, 61 AD3d at 776; People v Miller, 57 AD3d 568, 570 [2008]; People v Sanjurjo, 39 AD3d 773[2007]). Furthermore, the defendant's contention that his statement was the product of threatsand physical harm is not properly before this Court since we are precluded from reviewing trialtestimony in determining whether the hearing court acted properly (see People v Hucks,175 AD2d 213, 214 [1991]).
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt of both counts of burglary in the second degree beyond a reasonable doubt. Thedefendant's contention that his conviction of resisting arrest is not supported by legally sufficientevidence is unpreserved for appellate review, as defense counsel did not specifically address theresisting arrest count when he moved for a trial order of dismissal (see People v Hawkins, 11 NY3d484, 492-493 [2008]; People v Gray, 86 NY2d 10 [1995]; People v Linton, 62 AD3d 722,723 [2009]). In any event, viewing the evidence in the light most favorable to the prosecution(see People v Contes, 60 NY2d 620 [1983]), we find that the evidence was legallysufficient to establish the defendant's guilt of resisting arrest beyond a reasonable doubt.
Upon our independent review pursuant to CPL 470.15 (5), we are satisfied that the verdict ofguilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]). Any inconsistenciesbetween the testimony that the police officer provided at the suppression hearing and at the trial,and any discrepancies between the complainant's prior description of the clothing worn by thedefendant to a police officer and the complainant's trial testimony, were minor and did not rendertheir testimony incredible or unreliable (see People v Scipio, 61 AD3d 899 [2009]; People v Sepulveda, 59 AD3d641, 642 [2009]; People vColon, 42 AD3d 549, 550 [2007]). Rivera, J.P., Leventhal, Hall and Sgroi, JJ., concur.