| People v Brujan |
| 2013 NY Slip Op 01604 [104 AD3d 481] |
| March 14, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Handerson Polanco Brujan,Appellant. |
—[*1] Robert T Johnson, District Attorney, Bronx (Noah J. Chamoy of counsel), forrespondents.
Judgment, Supreme Court, Bronx County (Colleen Duffy, J.), rendered May 14,2010, convicting defendant, after a jury trial, of robbery in the first degree, andsentencing him to a term of five years, with four years' postrelease supervision,unanimously affirmed.
The court providently exercised its discretion in reopening the suppression hearing,after both sides had rested but before any decision on the merits had been made, to allowthe People's witness to provide additional testimony bearing on the legality of the policeconduct (see People vCestalano, 40 AD3d 238 [1st Dept 2007], lv denied 9 NY3d 921[2007]). A request to present additional evidence in this type of situation should beaddressed to the court's discretionary power to alter the order of proof within aproceeding (see People v Whipple, 97 NY2d 1, 6 [2001]), rather than beinggoverned by the restrictions on rehearings set forth in People v Havelka (45NY2d 636 [1978]). In the circumstances presented, we do not find that there was asignificant risk of tailoring, and, as in People v Alvarez (51 AD3d 167, 179 [2008], lv denied11 NY3d 785 [2008]), "we believe that the hearing court was more than up to thetask of evaluating the risk of manufactured testimony."
The court correctly denied defendant's suppression motion. The police had, at least,reasonable suspicion warranting an investigatory detention. In the early morning hours ina desolate area, defendant and a codefendant were wearing clothing that, with theexception of a minor discrepancy as to the color of a garment, matched a description oftwo men who had just committed a robbery. Given the extremely close temporal andspatial proximity to the reported crime, and the absence of anyone else in the vicinityother than a person who did not fit the description, there was a strong likelihood thatthese men were the robbers (seePeople v William, 81 AD3d 453 [1st Dept 2011], affd 19 NY3d 891[2012]; People v Florencio,41 AD3d 113 [1st Dept 2007], lv denied 9 NY3d 922 [2007]; see also People v Johnson, 63AD3d 518 [2009], lv denied 13 NY3d 797 [2009]). Moreover, when themen saw the police, they immediately fled, which heightened the level of suspicion(see People v Woods, 98 NY2d 627, 628 [2002]).
The police conducted a showup at the scene of the robbery in a manner that waspermissible and not unduly suggestive, given the fast-paced chain of events (seePeople v Duuvon, 77 NY2d 541 [1991]). Even assuming that defendant washandcuffed and guarded by [*2]multiple officers duringthe showup, these were appropriate security measures, and the overall effect of theallegedly suggestive circumstances was not significantly greater than what is inherent inany showup (see People vGatling, 38 AD3d 239, 240 [2007], lv denied 9 NY3d 865 [2007]).
The verdict was not against the weight of the evidence (see People v Danielson, 9NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury'sdeterminations concerning identification and credibility. The prosecution's case includedthe victim's prompt identification and defendant's detailed written confession.
We perceive no reason for reducing the postrelease supervision portion of thesentence. Concur—Gonzalez, P.J., Tom, Richter and Abdus-Salaam, JJ.