| People v Blunt |
| 2010 NY Slip Op 02191 [71 AD3d 1380] |
| March 19, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jeffrey K.Blunt, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Nancy A. Gilligan of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Richard A. Keenan, J.), rendered July6, 2006. The judgment convicted defendant, upon a jury verdict, of robbery in the first degree,burglary in the second degree and criminal possession of a controlled substance in the seventhdegree.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the law,that part of the motion seeking to suppress showup identification testimony is granted and thematter is remitted to Monroe County Court for further proceedings in accordance with thefollowing memorandum: On appeal from a judgment convicting him, following a jury trial, ofrobbery in the first degree (Penal Law § 160.15 [4]), burglary in the second degree(§ 140.25 [1] [d]) and criminal possession of a controlled substance in the seventh degree(§ 220.03), defendant contends that County Court erred in denying that part of hisomnibus motion seeking to suppress showup identification testimony. We agree. Here, theevidence adduced at the Wade hearing established that the incident occurred atapproximately 7:25 a.m. and that the showup was conducted at approximately 9:30 p.m., severalmiles away from the scene of the incident and after defendant had been placed under arrest anddrugs were found on his possession.
It is well settled that showup identifications are generally disfavored because they areinherently suggestive by nature, but they nevertheless are not "presumptively infirm" (Peoplev Duuvon, 77 NY2d 541, 543 [1991]; see People v Ortiz, 90 NY2d 533, 537[1997]). Showup identifications must be conducted "prompt[ly]" following the defendant's arrestand they must occur "at or near the crime scene" (Duuvon, 77 NY2d at 544). Indetermining whether the showup identification is conducted in adequate temporal andgeographic proximity to the crime, courts must consider the specific facts and circumstances ofeach case (see id. at 543; see also People v Johnson, 81 NY2d 828, 831 [1993]).Here, we conclude that the showup was in fact infirm, in view of the facts and circumstances ofthis case. Because the witness who identified defendant at the showup identification proceduredid not testify at the Wade hearing, "the People did not establish that [the] witness hadan independent basis for [his] in-court identification of defendant" (People v Hill, 53 AD3d 1151,1151 [2008]), and "there is no evidence upon which this Court can base such a determination"(People v Walker, 198 AD2d 826, 828 [1993]). Defendant therefore is entitled to a newWade hearing on that issue (see Hill, 53 AD3d 1151 [2008]; Walker, 198AD2d at 828; see generally [*2]People v Burts, 78 NY2d20, 23 [1991]). We therefore reverse the judgment, grant that part of defendant's omnibus motionseeking to suppress showup identification testimony and remit the matter to County Court for anew Wade hearing on the issue whether the witness has an independent basis for hisin-court identification of defendant and a new trial on counts one, two and three of theindictment, if the People are so advised.
We have reviewed defendant's remaining contentions and conclude they are without merit.Present—Smith, J.P., Peradotto, Carni, Pine and Gorski, JJ.