| People v Samuels |
| 2014 NY Slip Op 00039 [113 AD3d 1117] |
| January 3, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Ronald S. Samuels, Jr., Respondent. |
—[*1] Sandra Doorley, District Attorney, Rochester (Amanda L. Dreher of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti,J.), rendered January 13, 2009. The judgment convicted defendant, upon a jury verdict,of assault in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict ofassault in the second degree (Penal Law § 120.05 [2]), defendant contends thatSupreme Court erred in denying his request to charge assault in the third degree as alesser included offense (see generally People v Glover, 57 NY2d 61, 63 [1982]).Viewing the evidence in the light most favorable to defendant, as we must (see People v Burnett, 100AD3d 1561, 1562 [2012]), we reject that contention (see generally People vFreeman, 46 AD3d 1375, 1376 [2007], lv denied 10 NY3d 840 [2008];People v Saunders, 292 AD2d 780, 780 [2002], lv denied 98 NY2d 681[2002]).
Contrary to defendant's further contention, "the police had reasonable suspicion tostop and detain him for a showup identification procedure based on the totality of thecircumstances, including 'a radio transmission providing a general description of theperpetrator[ ] of [the] crime[,] . . . the . . . proximity of thedefendant to the site of the crime, the brief period of time between the crime and thediscovery of the defendant near the location of the crime, and the [officer's] observationof the defendant, who matched the radio-transmitted description' " (People vCasillas, 289 AD2d 1063, 1064 [2001], lv denied 97 NY2d 752 [2002]; see People v Bolden, 109AD3d 1170, 1172 [2013]; People v Knight, 94 AD3d 1527, 1529 [2012], lvdenied 19 NY3d 998 [2012]). Also contrary to defendant's contention, hewas not under arrest at the time that he was handcuffed and transported in a policevehicle to the nearby crime scene for a showup identification procedure (see People v Galloway, 40AD3d 240, 240-241 [2007], lv denied 9 NY3d 844 [2007]; see also People v McCoy, 46AD3d 1348, 1349 [2007], lv denied 10 NY3d 813 [2008]). Finally, weconclude that "[t]he police had probable cause to arrest defendant after the victim [and asecurity officer] identified him during the showup identification procedure" (People v Dumbleton, 67 AD3d1451, 1452 [2009], lv denied 14 NY3d 770 [2010]). Present—Smith,J.P., Fahey, Lindley, Sconiers and Whalen, JJ.