| People v Calero |
| 2013 NY Slip Op 02411 [105 AD3d 864] |
| April 10, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Jose Calero, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Keith Dolan,and Marie John-Drigo of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Dowling, J.), rendered August 30, 2010, convicting him of assault in the second degree,upon a jury verdict, and imposing sentence. The appeal brings up for review the denial,after a hearing and upon reargument (Dwyer, J.), of the defendant's motion to suppressidentification testimony.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the hearing court did not err in denying hismotion to suppress the showup identification of him made by the complainant near thescene of the crime. "While the defendant bears the ultimate burden of proving that ashowup procedure is unduly suggestive and subject to suppression, the burden is on thePeople first to produce evidence validating the admission of such evidence" (People vOrtiz, 90 NY2d 533, 537 [1997]). The People's burden consists of two elements.First, "the People must demonstrate that the showup was reasonable under thecircumstances. Proof that the showup was conducted in close geographic and temporalproximity to the crime will generally satisfy this element of the People's burden" (id.at 537). Second, the People must produce "some evidence relating to the showupitself, in order to demonstrate that the procedure was not unduly suggestive"(id.).
Here, the People presented evidence that the showup took place within closeproximity to the crime scene and within minutes of the commission of the crime (see People v Berry, 50 AD3d1047, 1048 [2008]; Peoplev Loo, 14 AD3d 716, 716-717 [2005]; People v Rodney, 237 AD2d541, 541-542 [1997]). The People also presented a detailed account of the physicalcircumstances of the showup founded on the testimony of police officers who witnessedthe crime, located the defendant, and secured him prior to the showup (see People vOrtiz, 90 NY2d at 537; People v Berry, 50 AD3d at 1048; People vRosa, 231 AD2d 534, 535-536 [1996]; People v Mitchell, 185 AD2d 249,250 [1992]). Thus, the hearing court properly determined that the People satisfied theirinitial burden.
The hearing court also correctly determined that, in turn, the defendant failed tosatisfy his burden of showing that the identification procedure was unduly suggestive andsubject [*2]to suppression. "The defendant's contentionthat the complainant may have been improperly influenced at the time of theidentification is purely speculative" (People v Berry, 50 AD3d at 1048; seePeople v Dottin, 255 AD2d 521, 521 [1998]; People v Mitchell, 185 AD2dat 250-251), and the fact that the defendant was handcuffed and in the back of a policevehicle does not render the showup unduly suggestive (see People v Duuvon, 77NY2d 541, 543-545 [1991]; People v Bitz, 209 AD2d 709, 709-710 [1994];People v Doherty, 198 AD2d 296, 296-297 [1993]; People v Rowlett,193 AD2d 768, 768 [1993]; People v Carbonaro, 162 AD2d 459, 459 [1990]).
The defendant correctly contends that the Supreme Court improperly directed him tomake the notes of his investigator, which consisted of a prior statement made by thecomplainant to the investigator, available to the People since the statement was madeavailable prior to the presentation of the People's direct case and, in any event, was not"made by a person other than the defendant whom the defendant intend[ed] to call asa witness at the trial" (CPL 240.45 [2] [a] [emphasis added]; see People vColavito, 87 NY2d 423, 427 [1996]). However, we conclude that the evidence of thedefendant's guilt was overwhelming and there is no reasonable possibility that the errormight have contributed to defendant's conviction. Therefore, the error was harmlessbeyond a reasonable doubt (see People v Crimmins, 36 NY2d 230, 237 [1975];People v Drayton, 198 AD2d 770, 771 [1993]).
The defendant's contention that the Supreme Court unduly restricted hiscross-examination of the People's expert by sustaining certain objections made by theprosecutor is not preserved for appellate review (see CPL 470.05 [2]; Peoplev George, 67 NY2d 817 [1986]; People v Sutherland, 280 AD2d 622[2001]) and, in any event, is without merit.
The defendant's remaining contentions are without merit. Skelos, J.P., Angiolillo,Roman and Cohen, JJ., concur.