| People v Johnson |
| 2013 NY Slip Op 01426 [104 AD3d 705] |
| March 6, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Lynwood E. Johnson, Appellant. |
—[*1] William V. Grady, District Attorney, Poughkeepsie, N.Y. (Joan H. McCarthy ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County(Greller, J.), rendered April 14, 2011, convicting him of attempted burglary in the seconddegree, upon his plea of guilty, and imposing sentence. The appeal brings up for reviewthe denial, after a hearing, of that branch of the defendant's omnibus motion which wasto suppress identification testimony.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the County Court properly denied that branchof his omnibus motion which was to suppress identification testimony. " 'While showupprocedures are generally disfavored, they are permissible, even in the absence of exigentcircumstances, when they are spatially and temporally proximate to the commission ofthe crime and not unduly suggestive' " (People v Gonzalez, 57 AD3d 560, 561 [2008], quoting People v Berry, 50 AD3d1047, 1048 [2008]; see People v Brisco, 99 NY2d 596, 597 [2003];People v Ortiz, 90 NY2d 533, 537 [1997]; People v Duuvon, 77 NY2d541, 544-545 [1991]). Here, the hearing testimony of two police officers involved in thechallenged showup procedure demonstrated that it occurred approximately 10 minutesafter the commission of the subject crime, and approximately one block from the scene ofthe crime. The People met their initial burden of establishing the reasonableness of thepolice conduct and the lack of undue suggestiveness in the showup identification (see People v Jacob, 94 AD3d1142, 1144 [2012]; People v Gonzalez, 57 AD3d at 561; People vBerry, 50 AD3d at 1048). The burden then shifted to the defendant to prove that theprocedure was unduly suggestive (see People v Ortiz, 90 NY2d at 537), and thedefendant failed to satisfy this burden. Contrary to the defendant's contention, since therewas no showing of suggestiveness, the People were not required to establish anindependent source for the in-court identification (see People v Chipp, 75 NY2d327, 335 [1990], cert denied 498 US 833 [1990]).
The defendant's contentions that the County Court erred in its pretrialSandoval ruling (see People v Sandoval, 34 NY2d 371 [1974]), and indenying his application, in effect, to suppress certain evidence on Molineuxgrounds (see People v Molineux, 168 NY 264 [1901]), are not properly beforethis Court, as the defendant forfeited review of these rulings by virtue of his plea ofguilty (see People v Gerber, 182 AD2d 252, 260 [1992]; see also People v Perry, 60AD3d 974, 974 [2009]; People v Condes, 23 [*2]AD3d 1149, 1150 [2005]; People v Flythe, 190AD2d 748 [1993]). Dillon, J.P., Dickerson, Leventhal and Hinds-Radix, JJ., concur.