| People v Santiago |
| 2011 NY Slip Op 02602 [83 AD3d 1471] |
| April 1, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Victor E.Santiago, Appellant. |
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Appeal from a judgment of the Monroe County Court (John R. Schwartz, A.J.), renderedFebruary 7, 2008. The judgment convicted defendant, upon his plea of guilty, of burglary in thesecond degree and possession of burglar's tools.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of burglaryin the second degree (Penal Law § 140.25 [2]) and possession of burglar's tools (§140.35), defendant contends that County Court erred in refusing to suppress the victim's showupidentification of him. Defendant contended following the suppression hearing that the showupprocedure was "inherently suggestive" because the victim was "a young man who was shown noone else moments after an event." Thus, defendant failed to preserve for our review his presentcontentions that the showup procedure was unreasonable under the circumstances, that it wasunduly suggestive because the 13-year-old identifying victim observed defendant exiting a policecar in handcuffs, and defendant was in the presence of a police officer during the showupprocedure (see CPL 470.05 [2]; People v Morgan, 302 AD2d 983, 984 [2003],lv denied 99 NY2d 631 [2003]). In any event, we conclude that defendant's presentcontentions lack merit. The showup procedure was reasonable under the circumstances because itwas conducted in "geographic and temporal proximity to the crime" (People v Brisco, 99NY2d 596, 597 [2003]; see People vKirkland, 49 AD3d 1260, 1260-1261 [2008], lv denied 10 NY3d 961 [2008],cert denied 555 US —, 129 S Ct 1331 [2009]; People v Davis, 48 AD3d 1120, 1122 [2008], lv denied 10NY3d 957 [2008]). Further, the showup procedure was not rendered unduly suggestive by thevictim's observation of defendant exiting a police car in handcuffs or by the fact that defendantwas in the presence of a police officer during the procedure (see Davis, 48 AD3d at 1122;see also People v Grant, 77 AD3d558 [2010]). Finally, it cannot be said that the identifying victim's young age rendered theshowup procedure unduly suggestive (see generally People v Smith, 236 AD2d 639, 640[1997], lv denied 90 NY2d 863 [1997]). Present—Smith, J.P., Fahey, Peradotto,Lindley and Martoche, JJ.