| People v Sain |
| 2013 NY Slip Op 07994 [111 AD3d 964] |
| November 27, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Joseph Sain, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Maria I. Wager, Steven A.Bender, and Richard Longworth Hecht of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County(Hubert, J.), rendered October 21, 2010, convicting him of burglary in the second degreeand petit larceny, after a nonjury trial, and imposing sentence. The appeal brings up forreview the denial, after a hearing, of that branch of the defendant's omnibus motionwhich was to suppress certain identification evidence.
Ordered that the judgment is affirmed.
The defendant's contention, also raised in his pro se supplemental brief, that he wasdeprived of his right to testify before the grand jury, is without merit. Criminal ProcedureLaw § 190.50 (5) (a) provides a defendant with the right to testify before the grandjury "if, prior to the filing of any indictment . . . in the matter, he servesupon the district attorney of the county a written notice making such request."Notwithstanding the defendant's claim that he told his attorney of his desire to testifybefore the grand jury, there is no evidence in the record that either he or his attorneyserved the required written notice on the District Attorney (see CPL 190.50 [5][a]). Consequently, the defendant's motion to dismiss the indictment on the ground thathe was not accorded an opportunity to appear and testify before the grand jury wasproperly denied (see CPL 210.20 [1] [c]; 210.35 [4]; 190.50 [5] [a]; People v Griffith, 76 AD3d1102 [2010]; People v Rogers, 228 AD2d 623 [1996]). Moreover, even ifdefense counsel failed to act on the defendant's desire to testify before the grand jury, anyfailure on the part of counsel to so act would not, under the circumstances of this case,amount to the denial of the effective assistance of counsel (see People v Simmons, 10NY3d 946, 949 [2008]; People v Griffith, 76 AD3d at 1103; People v Maier, 77 AD3d681 [2010]; People v Brooks, 258 AD2d 527 [1999]; People vRogers, 228 AD2d at 623-624).
Contrary to the defendant's contention, the hearing court properly denied that branchof his omnibus motion which was to suppress the showup identification made by awitness near the scene of the crime. "While showup procedures are generally disfavored,they are permissible, even in the absence of exigent circumstances, when they arespatially and temporally proximate to the commission of the crime and not undulysuggestive" (People vCuesta, 103 AD3d 913, 915 [2013] [internal quotation marks omitted]; People v Berry, 50 AD3d1047, 1048 [2008]; see People v Russo, 271 AD2d 554, [*2]555 [2000]; see generally People v Ortiz, 90 NY2d533, 537 [1997]). Here, there was evidence that the showup identification took placeapproximately 10 to 15 minutes after the commission of the crime and across the streetfrom the crime scene (see People v Cuesta, 103 AD3d at 915; People v Gonzalez, 57 AD3d560, 561 [2008]; People v Berry, 50 AD3d at 1048; People v Loo, 14 AD3d716, 716 [2005]). The People met their initial burden of establishing thereasonableness of the police conduct and the lack of undue suggestiveness in the showupidentification through the testimony of the detective who transported the witness to thelocation of the showup and the testimony of the officer who located the defendant andsecured him during the showup (see People v Ortiz, 90 NY2d at 537; Peoplev Cuesta, 103 AD3d at 915; People v Gonzalez, 57 AD3d at 561). Theburden shifted to the defendant to prove that the procedure was unduly suggestive(see People v Ortiz, 90 NY2d at 537; People v Cuesta, 103 AD3d at915; People v Gonzalez, 57 AD3d at 561), and the defendant failed to satisfy hisburden in this regard. Under the circumstances of this case, the fact that the defendantwas handcuffed while in the presence of uniformed officers does not render the showupunduly suggestive (see People v Cuesta, 103 AD3d at 915; People v Hudson, 71 AD3d1046 [2010]; People v Gonzalez, 57 AD3d at 561; People v Berry,50 AD3d at 1048; People vLoo, 14 AD3d 716 [2005]; People v Tatum, 39 AD3d 571, 572 [2007]).
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt of burglary in the second degree (see Penal Law § 140.25[2]) and petit larceny (see Penal Law § 155.25) beyond a reasonable doubt(see People v Sayles, 57AD3d 698 [2008]; People v Caraballo, 138 AD2d 725, 726 [1988]).Moreover, upon our independent review pursuant to CPL 470.15 (5), we are satisfiedthat the verdict of guilt as to those crimes was not against the weight of the evidence (see People v Danielson, 9NY3d 342 [2007]; People vRomero, 7 NY3d 633 [2006]).
The defendant's remaining contentions, raised in his pro se supplemental brief, areunpreserved for appellate review and, in any event, without merit. Dillon, J.P.,Angiolillo, Dickerson and Cohen, JJ., concur.