| People v Swain |
| 2013 NY Slip Op 06106 [109 AD3d 1090] |
| September 27, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v ElishaR. Swain, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (David Panepinto of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Sheila A. DiTullio, J.), renderedApril 26, 2011. The judgment convicted defendant, upon his plea of guilty, of robbery inthe first degree and criminal possession of a weapon in the second 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 ofguilty, of robbery in the first degree (Penal Law § 160.15 [4]) and criminalpossession of a weapon in the second degree (§ 265.03 [3]). Defendant contendsthat County Court erred in refusing to suppress identification testimony arising from anunduly suggestive showup identification procedure. We reject that contention. Theshowup identification procedure took place within 30 minutes of the robbery, inproximity to where the robbery occurred and "in the context of a continuous, ongoinginvestigation," which was sufficient to establish that the showup procedure wasreasonable under the circumstances (People v Brisco, 99 NY2d 596, 597[2003]; see People v Lewis,97 AD3d 1097, 1098 [2012], lv denied 19 NY3d 1103 [2012]; People v Jacob, 94 AD3d1142, 1144 [2012], lv denied 19 NY3d 962 [2012]). The showup was notrendered unduly suggestive by the victim's observation of portions of the policeinvestigation or the fact that defendant was in the presence of police officers when thevictim identified him (seePeople v Santiago, 83 AD3d 1471, 1471 [2011], lv denied 17 NY3d800 [2011]; People v Grant,77 AD3d 558, 558 [2010], lv denied 16 NY3d 831 [2011]). Contrary todefendant's further contention, the court did not err in limiting defendant'scross-examination of the victim concerning his observations of defendant at the time ofthe robbery. The purpose of a Wade hearing is "to test identification testimonyfor taint arising from official suggestion during 'police-arranged confrontations betweena defendant and an eyewitness' " (People v Dixon, 85 NY2d 218, 222 [1995],quoting People v Gissendanner, 48 NY2d 543, 552 [1979]), and the court did notabuse its discretion in refusing to permit defendant to cross-examine the victim on anissue that was not material to that inquiry (see generally People v Bryant, 73 AD3d 1442, 1443[2010], lv denied 15 NY3d 850 [2010]; People v Snell, 234 AD2d 986,986 [1996], lv denied 89 NY2d 1015 [1997]).
Finally, we reject defendant's contention that the court erred in refusing to suppressphysical evidence seized from his basement following a warrantless search of the housewhere he [*2]resided with his mother. After the policeaccompanied defendant into the house so that he could retrieve his jacket and boots,defendant's mother verbally consented to the search of the house, led the officers into thebasement, and signed a written consent to search the premises. The record establishesthat the mother freely and voluntarily consented to the search of the residence (see People v Santiago, 41AD3d 1172, 1173-1174 [2007], lv denied 9 NY3d 964 [2007]; People vAdams, 244 AD2d 897, 898 [1997], lv denied 91 NY2d 887 [1998]).Present—Scudder, P.J., Smith, Centra, Fahey and Peradotto, JJ.