| People v Capers |
| 2012 NY Slip Op 03051 [94 AD3d 1475] |
| April 20, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Devon Capers,Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (John R. Schwartz, A.J.), renderedJune 17, 2008. The judgment convicted defendant, upon a jury verdict, of robbery in the firstdegree, burglary in the first degree (two counts), criminal sexual act in the first degree (twocounts), unlawful imprisonment in the first degree and petit larceny.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of,inter alia, two counts each of burglary in the first degree (Penal Law § 140.30 [3]) andcriminal sexual act in the first degree (§ 130.50 [1]). As the People correctly concede,County Court erred in permitting a police investigator to testify that defendant refused to answercertain questions and that the interview was thereafter terminated. That testimony implied thatdefendant had stopped answering the investigator's questions and had invoked his right to remainsilent. "Neither a defendant's silence [nor his or her] invocation of the right againstself-incrimination during police interrogation can be used against him [or her] on the People'sdirect case" (People v Whitley, 78AD3d 1084, 1085 [2010]). We nevertheless conclude, "in light of the evidence presented,. . . that any such error[is] 'harmless beyond a reasonable doubt' inasmuch as there is'no reasonable possibility that the error[ ] might have contributed to defendant's conviction' " (People v Murphy, 79 AD3d 1451,1453 [2010], lv denied 16 NY3d 862 [2011], quoting People v Crimmins, 36NY2d 230, 237 [1975]; see People vKithcart, 85 AD3d 1558, 1559-1560 [2011], lv denied 17 NY3d 818 [2011]).
"[D]efendant's contentions that the testimony of a [police] detective recounting thedescription of the perpetrator given by a witness constituted improper bolstering andinadmissible hearsay . . . are unpreserved for [our] review [because] the defendantdid not object to the testimony on those grounds" (People v Walker, 70 AD3d 870, 871 [2010], lv denied 14NY3d 894 [2010]; see People v Everson, 100 NY2d 609, 610 [2003]; People vTevaha, 84 NY2d 879, 880-881 [1994]). In any event, that contention is without merit. ThePeople were entitled "to provide background information [concerning] how and why the policepursued and confronted defendant" (People v Tosca, 98 NY2d 660, 661 [2002]).[*2]
Contrary to defendant's further contention, the courtproperly concluded that the showup identification procedure was not unduly suggestive. Showupidentification procedures are permitted where, as here, they are "reasonable under thecircumstances—that is, when conducted in close geographic and temporal proximity to thecrime—and the procedure used was not unduly suggestive" (People v Brisco, 99NY2d 596, 597 [2003]). "Here, the showup identification procedure took place at the scene of thecrime, within 90 minutes of the commission of the crime and in the course of a continuous,ongoing investigation" (People vWoodard, 83 AD3d 1440, 1441 [2011], lv denied 17 NY3d 803 [2011]; see People v Harris, 57 AD3d1427, 1428 [2008], lv denied 12 NY3d 817 [2009]).
We have considered defendant's remaining contentions and conclude that they are withoutmerit. Present—Smith, J.P., Fahey, Peradotto and Lindley, JJ.