| People v Ward |
| 2014 NY Slip Op 02809 [116 AD3d 989] |
| April 23, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Anthony Ward, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Tammy J. Smiley and Cristin N.Connell of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Nassau County(Peck, J.), rendered March 8, 2011, convicting him of burglary in the first degree, assaultin the second degree, petit larceny, and resisting arrest, upon a jury verdict, and imposingsentence. The appeal brings up for review the denial (Sullivan, J.), after a hearing, of thatbranch of the defendant's omnibus motion which was to suppress identificationtestimony.
Ordered that the judgment is affirmed.
On the night of September 10, 2009, Police Officers John Fallace and TerrenceHeller responded to a house in Inwood, Nassau County, after hearing a radiotransmission of a burglary in progress. When they arrived, the complainant told them thatshe had seen a middle-aged bald black man wearing black clothing and sneakersclimbing out of her bedroom window carrying her purse. The complainant told theofficers that her husband's wallet, containing approximately $480 in cash, was missingfrom the bedroom as well.
Officer Fallace went outside to transmit a description of the perpetrator over thepolice radio; as he did so Police Officer Nick Collins pulled up in a police car, andOfficer Fallace advised him of the perpetrator's description. Almost immediatelythereafter, Officer Fallace saw the defendant, who fit that description, walking from anearby driveway. When the defendant saw Officer Fallace and Officer Collins looking athim, he fled the scene on foot. Officer Fallace told Officer Collins that the defendant wasprobably "their guy," and they chased and caught him. A violent struggle ensued betweenthe defendant and Officer Collins, joined by other police officers. The defendant did notstop struggling until the officers managed to handcuff his hands and feet, leaving OfficerCollins bleeding from his hands and face, with the right side of his face swollen. Oncethe defendant was subdued, the police officers searched him and found a wad of cash inhis [*2]pocket.
Officer Fallace then went back to the complainant's house and told her "we havesomebody I want you to look at." He took the complainant and her husband around theblock to the scene of the defendant's arrest, where the defendant was sitting on the curb,surrounded by police officers. The complainant was crying uncontrollably and did notattempt to identify the defendant. Therefore, Officer Fallace escorted her home so shecould calm down. Twenty or 30 minutes later, Officer Fallace escorted her back to thescene of the defendant's arrest, and told her he wanted to "see if she could recognizeanybody." As the complainant approached the defendant, police officers pulled him intoa standing position and escorted him to within 25 to 30 feet of the complainant. OfficerFallace asked the complainant "[d]o you know this man?" and she identified thedefendant as the perpetrator.
Although the complainant's description of the perpetrator was properly admitted intoevidence (see People v Sanders, 66 NY2d 906, 908 [1985]; People vTurner, 214 AD2d 594 [1995]), her showup identification and in-court identificationof the defendant were not. Under New York law, "[s]howup identifications 'are stronglydisfavored but are permissible if exigent circumstances require immediate identification(People v Rivera, 22 NY2d 453 [1968][,] [cert denied 395 US 964(1969)]), or if the suspects are captured at or near the crime scene and can be viewed bythe witness immediately' " (People v Johnson, 81 NY2d 828, 831 [1993], quotingPeople v Riley, 70 NY2d 523, 529 [1987]). Showup procedures "are permissible,even in the absence of exigent circumstances, when they are spatially and temporallyproximate to the commission of the crime and not unduly suggestive" (People v Johnson, 104 AD3d705, 705 [2013] [internal quotation marks and citation omitted]; see People vBrisco, 99 NY2d 596, 597 [2003]; People v Ortiz, 90 NY2d 533, 537[1997]; People v Gonzalez,57 AD3d 560, 561 [2008]; People v Berry, 50 AD3d 1047, 1048 [2008]). While thedefendant bears the ultimate burden of proving that a showup procedure is undulysuggestive and subject to suppression, "the People have the initial burden of goingforward to establish the reasonableness of the police conduct and the lack of any unduesuggestiveness in a pretrial identification procedure" (People v Chipp, 75 NY2d327, 335 [1990], cert denied 498 US 833 [1990]; see People v Ortiz, 90NY2d at 537; People v Riley, 70 NY2d at 531). "The People's burden consists oftwo elements. First, 'the People must demonstrate that the showup was reasonable underthe circumstances. Proof that the showup was conducted in close geographic andtemporal proximity to the crime will generally satisfy this element of the People's burden'" (People v Calero, 105AD3d 864, 864 [2013], lv denied 22 NY3d 1039 [2013], quoting Peoplev Ortiz, 90 NY2d at 537). However, "[t]he People also have the burden of producingsome evidence relating to the showup itself, in order to demonstrate that the procedurewas not unduly suggestive" (People v Ortiz, 90 NY2d at 537; see People vCalero, 105 AD3d at 864).
The People established that the showup "was conducted in close geographic andtemporal proximity to the crime" (People v Ortiz, 90 NY2d at 537; see Peoplev Duuvon, 77 NY2d 541, 543-544 [1991]). However, they failed to demonstrate thatthe procedure was not unduly suggestive. The fact that a defendant is handcuffed and inthe presence of police officers, standing alone, does not render a showup undulysuggestive (see People v Calero, 105 AD3d at 865; People v Bitz, 209AD2d 709, 709-710 [1994]; People v Doherty, 198 AD2d 296, 296-297 [1993]),even where "the victim had been told that the police had a suspect in custody" (People v Gil, 21 AD3d1120, 1121 [2005]; seePeople v Crumble, 43 AD3d 953 [2007]). Here, however, the complainant wasgiven two opportunities to identify the same man as the perpetrator. The second time,police officers pulled the defendant into a standing position and escorted him to wherethe complainant was standing. At that juncture, the defendant was under arrest andOfficer Fallace acknowledged that "[t]here was no rush at that point." Therefore, therewere no exigent circumstances justifying the procedures employed. The above-describedcircumstances, when "viewed cumulatively," establish that "the showup identificationwas unduly suggestive" (Matterof James T., 81 AD3d 838, 839 [2011]). Further, there was no hearing orfinding on the question of whether the complainant's in-court identification had anindependent source (see People v James, 218 AD2d 709 [1995]).
However, we conclude that the erroneous admission of the identification testimonyinto evidence was harmless beyond a reasonable doubt, since the evidence of thedefendant's guilt, without the showup and in-court identification testimony, wasoverwhelming, and there was no [*3]reasonablepossibility that the error might have contributed to the defendant's convictions (seePeople v Crimmins, 36 NY2d 230, 237 [1975]).
Further, even without the showup and in-court identification testimony, the verdict ofguilt was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348 [2007]; People v Romero, 7 NY3d633 [2006]). Indeed, the defendant's guilt was established by overwhelmingevidence. The defendant, who matched the complainant's description of the perpetrator,was apprehended in close proximity to the scene of the crime, after demonstratingconsciousness of guilt by fleeing from police officers, and engaging in a violent strugglewith them (see People v Harris, 304 AD2d 839 [2003]). The wad of cashrecovered from his person was similar to the amount stolen from the complainant'shusband's wallet. In addition, the defendant's cell phone was recovered from thecomplainant's backyard. Further, the defendant's arrest was authorized, and OfficerCollins sustained a physical injury in the course of effecting that arrest (see People vLundquist, 151 AD2d 505 [1989]).
Contrary to the defendant's contention, the People's failure to disclose a particulardocument to the defense until after the trial does not warrant reversal, since he failed toshow that there was "a reasonable possibility that the non-disclosure materiallycontributed to the result of the trial" (CPL 240.75; see People v Jingzhi Li, 104 AD3d 704, 705 [2013]).
The defendant's remaining contentions are without merit. Rivera, J.P., Balkin,Hinds-Radix and Maltese, JJ., concurs.