| People v Charles |
| 2013 NY Slip Op 07056 [110 AD3d 1094] |
| October 30, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Stephen Charles, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and DanielBerman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Parker, J.), rendered July 6, 2010, convicting him of burglary in the first degree,burglary in the second degree, kidnapping in the second degree (three counts), andendangering the welfare of a child, upon a jury verdict, and imposing sentence. Theappeal brings up for review the denial, after a hearing, of that branch of the defendant'somnibus motion which was to suppress identification testimony.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the hearing court properly denied that branchof his omnibus motion which was to suppress the showup identifications made by twocomplainants near the scene of the crime. "While the defendant bears the ultimate burdenof proving that a showup procedure is unduly suggestive and subject to suppression, theburden is on the People first to produce evidence validating the admission of suchevidence" (People v Ortiz, 90 NY2d 533, 537 [1997]; see People v Calero, 105AD3d 864 [2013]). The People's burden consists of two elements. First, "the Peoplemust demonstrate that the showup was reasonable under the circumstances. Proof that theshowup was conducted in close geographic and temporal proximity to the crime willgenerally satisfy this element of the People's burden" (People v Ortiz, 90 NY2dat 537). Second, the People must produce "some evidence relating to the showup itself,in order to demonstrate that the procedure was not unduly suggestive" (id.; see People v Calero, 105AD3d 864 [2013]).
Here, there was evidence that the showup identification took place approximately 50minutes after the crime and roughly one mile away from the crime scene (see People v Gonzalez, 57AD3d 560, 561 [2008]; People v Berry, 50 AD3d 1047, 1048 [2008]; People v Loo, 14 AD3d716 [2005]; People v Rodney, 237 AD2d 541, 542-542 [1997]). Moreover,the evidence established that the showup took place promptly after the defendant wasapprehended. Indeed, the factual circumstances presented at the pretrial hearingrepresented "one unbroken chain of events—crime, escape, pursuit, apprehensionand identification—all of which occurred in rapid sequence within a limitedgeographic area" (People v Mitchell, 185 AD2d 249, 251 [1992] [internalquotation marks omitted]; seePeople v Samuels, 39 AD3d 569, 570 [2007]). The People also presented adetailed account of the physical circumstances of the showup, which included testimonyfrom the police officer who apprehended the defendant and [*2]secured him prior to the showup, and testimony from thepolice officers who transported the complainants to the location of the showup (seePeople v Ortiz, 90 NY2d at 537; People v Calero, 105 AD3d 864 [2013]; People vBerry, 50 AD3d at 1048). Thus, the People met their initial burden of establishingthe reasonableness of the police conduct and the lack of undue suggestiveness (seePeople v Ortiz, 90 NY2d at 537; People v Berry, 50 AD3d at 1048).
In opposition, the defendant failed to satisfy his burden of demonstrating that theshowup procedure was "unduly suggestive and subject to suppression" (People vOrtiz, 90 NY2d at 537). Contrary to the defendant's contentions, the showup was notrendered unduly suggestive because the complainants knew that the police had a suspectin custody (see People vCrumble, 43 AD3d 953 [2007]; People v Gil, 21 AD3d 1120 [2005]; People vSharpe, 259 AD2d 639 [1999]), or because the defendant was handcuffed and in thepresence of uniformed police officers and police cars (see People v Gonzalez, 57AD3d at 561; People v Jay,41 AD3d 615, 615 [2007]; People v Rice, 39 AD3d 567, 568 [2007]; People vLoo, 14 AD3d at 716; People v Gilyard, 32 AD3d 1046 [2006]). Dillon, J.P.,Dickerson, Hall and Austin, JJ., concur.