| People v Hudson |
| 2010 NY Slip Op 02580 [71 AD3d 1046] |
| March 23, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v RyanHudson, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Tammy J. Smiley and Joanna Hersheyof counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Nassau County (Brown, J.),rendered May 25, 2007, convicting him of robbery in the first degree and unlawful possession ofmarijuana, upon a jury verdict, and imposing sentence. The appeal brings up for review thedenial, after a hearing, of that branch of the defendant's omnibus motion which was to suppressidentification testimony.
Ordered that the judgment is affirmed.
The defendant improperly relies, in part, upon trial testimony to challenge the hearing court'sdetermination denying suppression of the showup identification evidence. Trial testimony maynot be considered in evaluating a suppression ruling on appeal (see People v Abrew, 95NY2d 806, 809 [2000]; People v Riley, 70 NY2d 523, 532 [1987]; People vGonzalez, 55 NY2d 720, 721-722 [1981], cert denied 456 US 1010 [1982];People v Rice, 39 AD3d 567, 568 [2007]; People v Crosby, 33 AD3d 719, 720[2006]; People v Gold, 249 AD2d 414, 415 [1998]). In any event, the defendant'scontention is without merit. The showup took place within an hour of the commission of thecrime, at the location where the "getaway car" was found, five miles from the scene of the crime,and in the context of a continuous, ongoing investigation (see People v Brisco, 99 NY2d596, 597 [2003]; Brisco v Ercole, 565 F3d 80 [2009]; cf. People v Gonzalez, 61AD3d 775, 776 [2009]; People v Rice, 39 AD3d at 568; People v Gilyard, 32AD3d 1046 [2006]; People v Cruz, 31 AD3d 660, 661 [2006]; People v Loo, 14AD3d 716, 717 [2005]; People v Pierre, 2 AD3d 461, 462 [2003]). Accordingly, theshowup was not unduly suggestive.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish thedefendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conductan independent review of the weight of the evidence (see CPL 470.15 [5]; People vDanielson, 9 NY3d 342, 348-349 [2007]), we nevertheless accord great deference to thejury's opportunity to view the witnesses, hear the testimony, and observe demeanor (seePeople v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record, we are satisfiedthat the verdict of guilt was not against the weight of the evidence (see People v Romero,7 NY3d 633, 643-644 [2006]). Covello, J.P., Miller, Chambers and Lott, JJ., concur.