| People v Lewis |
| 2012 NY Slip Op 05449 [97 AD3d 1097] |
| July 6, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v StefanE. Lewis, Appellant. |
—[*1] Stefan E. Lewis, defendant-appellant pro se. Michael C. Green, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.), renderedAugust 27, 2008. The judgment convicted defendant, upon his plea of guilty, of murder in thesecond degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofmurder in the second degree (Penal Law § 125.25 [3] [felony murder]). Contrary to thePeople's contention, defendant did not forfeit his right to appeal by pleading guilty after CountyCourt issued an oral suppression ruling but before a written order thereon had been issued; "anappeal does lie from an oral 'order' " (People v Elmer, 19 NY3d 501,507 [2012]). Defendant contended at the suppressionhearing that the showup identification procedure was unduly suggestive because the store clerkwho made the identification did not see the robbers' faces, which were covered. Thus, defendantfailed to preserve for our review his present contentions that the court erred in failing to suppressthe showup identification on the grounds that the People failed to demonstrate that the showupidentification procedure was conducted in temporal proximity to the crime and that the showupidentification procedure was unnecessary because the police already had probable cause to arresthim in connection with an earlier robbery (see CPL 470.05 [2]).
In any event, we conclude that defendant's present contentions lack merit. Although showupidentification procedures are generally disfavored (see People v Ortiz, 90 NY2d 533, 537[1997]), such procedures are permitted "where [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]; see Ortiz, 90 NY2d at 537; People v Jackson, 78 AD3d 1685, 1685-1686 [2010], lv denied16 NY3d 743 [2011]). Here, the showup identification procedure was reasonable because itwas conducted at the scene of the crime, within 95 minutes of the commission of the crime andin the course of a "continuous, ongoing investigation" (Brisco, 99 NY2d at 597; see People v Santiago, 83 AD3d1471 [2011], lv denied 17 [*2]NY3d 800 [2011];People v Boyd, 272 AD2d 898, 899 [2000], lv denied 95 NY2d 850 [2000]).Further, a showup identification procedure is not improper "merely because the police alreadyhave probable cause to detain a suspect" (People v Davis, 232 AD2d 154, 154 [1996],lv denied 89 NY2d 941 [1997], lv denied 89 NY2d 1091 [1997]). Contrary todefendant's further contention, the sentence is not unduly harsh or severe.
In his pro se supplemental brief, defendant contends that he was denied effective assistanceof counsel because his attorney also represented defendant's two accomplices and thus had aninherent conflict of interest. We reject that contention. The successive or joint representation ofmultiple defendants is "not per se violative of one's constitutional right to the effective assistanceof counsel" (People v Macerola, 47 NY2d 257, 262 [1979]; see People vGonzalez, 30 NY2d 28, 34 [1972], cert denied 409 US 859 [1972]). While we agreewith defendant that both defense counsel and the prosecutor had a duty to recognize a potentialconflict of interest, defendant was required to show "that the conduct of his defense was in factaffected by the operation of the conflict of interest, or that the conflict operated on defensecounsel's representation" (People vWeeks, 15 AD3d 845, 847 [2005], lv denied 4 NY3d 892 [2005] [internalquotation marks omitted]). Here, defendant failed to make such a showing in his pro sesupplemental brief, and we therefore conclude that he has not met his burden of demonstratingthat he was denied the right to effective assistance of counsel under the Federal or StateConstitutions (see People v Harris, 99 NY2d 202, 210 [2002]; Weeks, 15 AD3dat 847-848; cf. People v Ortiz, 76 NY2d 652, 657-658 [1990]). Finally, we note that thiscase involved successive representations of codefendants, not multiple simultaneousrepresentations of codefendants, and we thus reject defendant's further contention in his pro sesupplemental brief that the court was required to conduct a Gomberg inquiry (seePeople v Jordan, 83 NY2d 785, 787-788 [1994]; People v Gomberg, 38 NY2d 307,313-314 [1975]). Present—Scudder, P.J., Smith, Fahey, Carni and Sconiers, JJ.