| People v Santiago |
| 2015 NY Slip Op 07861 [132 AD3d 1015] |
| October 28, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v John L. Santiago, Appellant. |
Rachel J. Filasto, White Plains, N.Y., for appellant.
Janet DiFiore, District Attorney, White Plains, N.Y. (Raffaelina Gianfrancesco,Laurie G. Sapakoff, and Steven A. Bender of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County(Neary, J.), rendered January 23, 2013, convicting him of attempted assault in the firstdegree, assault in the second degree, and criminal possession of a weapon in the fourthdegree, upon a jury verdict, and imposing sentence. The appeal brings up for review thedenial, after a hearing, of that branch of the defendant's omnibus motion which was tosuppress identification testimony.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court properly denied thatbranch of his omnibus motion which was to suppress identification testimony. Althoughshowup procedures are generally disfavored, "they are permissible, even in the absenceof exigent circumstances, when they are spatially and temporally proximate to thecommission of the crime and not unduly suggestive" (People v Gonzalez, 57 AD3d 560, 561 [2008] [internalquotation marks omitted]). Here, the hearing evidence established that the showup wasconducted in close spatial and temporal proximity to the commission of the crime for thepurpose of securing a prompt and reliable identification and was not unduly suggestive(see People v Cruz, 31AD3d 660, 661 [2006]; seealso People v Johnson, 104 AD3d 705, 706 [2013]; People v Jacob, 94 AD3d1142, 1144 [2012]; People v Gonzalez, 57 AD3d at 561; People v Crumble, 43 AD3d953, 953 [2007]; cf. People v Adams, 53 NY2d 241, 248-249 [1981]).Contrary to the defendant's contention, since there was no showing of unduesuggestiveness, the People were not required to establish an independent source for thein-court identification (see People v Chipp, 75 NY2d 327, 335 [1990]; Peoplev Johnson, 104 AD3d at 706).
There is no merit to the defendant's remaining contention that the Supreme Courtshould have given an adverse inference charge with respect to certain evidence ofphotographic images relating to the subject crime (see People v Hester, 122 AD3d 880, 880-881 [2014]; People v Rice, 39 AD3d567, 568-569 [2007]; People v Perez, 255 AD2d 403, 403-404 [1998];cf. People v Holman, 283 AD2d 440, 441 [2001]; People v Lineszy, 222AD2d 527, 528 [1995]). Dillon, J.P., Miller, Duffy and LaSalle, JJ., concur.