| People v Burnice |
| 2014 NY Slip Op 00037 [113 AD3d 1115] |
| January 3, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Chazerae M. Burnice, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Amanda L. Dreher of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Patricia D. Marks, J.),rendered September 14, 2009. The judgment convicted defendant, upon his plea ofguilty, of assault in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed onthe law, the plea is vacated, that part of the motion seeking to suppress showupidentification testimony with respect to defendant is granted and the matter is remitted toMonroe County Court for further proceedings in accordance with the followingmemorandum: On appeal from a judgment convicting him, upon a guilty plea, of assaultin the second degree (Penal Law § 120.05 [2]), defendant contends that CountyCourt erred in refusing to suppress showup identification testimony with respect to him.We agree. "Showup identifications are disfavored, since they are suggestive by their verynature" (People v Ortiz, 90 NY2d 533, 537 [1997]; see People vJohnson, 81 NY2d 828, 831 [1993]). Here, the showup identification procedure wasconducted in the parking lot of a police station, approximately 90 minutes after theoccurrence of the crime, while defendant was handcuffed and while uniformed policeofficers and ambulance personnel were in the parking lot. The totality of thecircumstances of this showup identification procedure presses judicial tolerance beyondits limits (cf. People v Duuvon, 77 NY2d 541, 545 [1991]; People vHunt, 277 AD2d 911, 911-912 [2000]), and we conclude under the facts andcircumstances of this case that the showup identification procedure was infirm (cf.Duuvon, 77 NY2d at 544).
Inasmuch as the witness who identified defendant at the showup identificationprocedure did not testify at the Wade hearing, the People did not establish thatsuch witness had an independent basis for his in-court identification of defendant (see People v Hill, 53 AD3d1151, 1151 [2008]). We thus conclude that defendant is entitled to a newWade hearing on that issue (see id. at 1151-1152; see generallyPeople v Burts, 78 NY2d 20, 22-23 [1991]). We therefore reverse the judgment and,because the motion was made by defendant and his codefendant, we grant only that partof the motion with respect to defendant and remit the matter to County Court for furtherproceedings, including a new Wade hearing on the issue whether the witness hasan independent basis for his in-court identification of defendant, if the People are soadvised. In light of our determination, we do not address defendant's remainingcontention. Present—Smith, J.P., Fahey, Lindley, Sconiers and Whalen, JJ.