| People v Mack |
| 2016 NY Slip Op 00521 [135 AD3d 962] |
| January 27, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Darren Mack, Appellant. |
Lynn W. L. Fahey, New York, NY (Leila Hull of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove and AnnBordley of counsel; Amanda Regan on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Garnett, J.), rendered February 14, 2013, convicting him of robbery in the seconddegree, upon a jury verdict, and imposing sentence. The appeal brings up for review thedenial, after a hearing (Ingram, J.), of that branch of the defendant's omnibus motionwhich was to suppress identification evidence.
Ordered that the judgment is affirmed.
The defendant contends that the hearing court improperly denied that branch of hisomnibus motion which was to suppress the showup identification made by thecomplainant near the scene of the crime. That contention is without merit. "While thedefendant bears the ultimate burden of proving that a showup procedure is undulysuggestive and subject to suppression, the burden is on the People first to produceevidence validating the admission of such evidence" (People v Ortiz, 90 NY2d533, 537 [1997]; see People v Chipp, 75 NY2d 327, 335 [1990]). The People'sburden of production consists of two elements. First, "the People must demonstrate thatthe showup was reasonable under the circumstances. Proof that the showup wasconducted in close geographic and temporal proximity to the crime will generally satisfythis element of the People's burden" (People v Ortiz, 90 NY2d at 537). Second,the People must produce "some evidence relating to the showup itself, in order todemonstrate that the procedure was not unduly suggestive" (id.). Once the Peoplehave met their twofold burden, the burden shifts to the defendant to show "that theidentification procedure was unduly suggestive and subject to suppression" (People v Calero, 105 AD3d864, 865 [2013]; see Peoplev Dabreo, 108 AD3d 731, 732 [2013]; People v Mitchell, 185 AD2d249, 251 [1992]).
Here, the People demonstrated that the showup was reasonable under thecircumstances by presenting proof that it was conducted within approximately 25minutes of the crime and within two miles of the crime scene (see People v Hudson, 71 AD3d1046, 1047 [2010]; Peoplev Rodgers, 6 AD3d 464, 465 [2004]; People v Yearwood, 197 AD2d554 [1993]). They also met their burden of establishing the lack of any unduesuggestiveness through the testimony of the detective who transported the complainant tothe showup and who provided a detailed account of the physical circumstances of theprocedure (see People vJerry, 126 AD3d 1001, 1002 [2015]; People v Ervin, 118 AD3d 910, 911 [2014]). Thedefendant then failed to satisfy the ultimate burden of proving that the showup [*2]procedure was unduly suggestive and subject tosuppression. Contrary to the defendant's contention, the showup was not rendered undulysuggestive because he was handcuffed and in the presence of uniformed police officersand police cars (see People vJerry, 126 AD3d 1001, 1002 [2015]; People v Charles, 110 AD3d 1094, 1096 [2013]; People v Gonzalez, 57 AD3d560, 561 [2008]), or because it took place in the vicinity of a car crash involving thevehicle used to flee the scene of the crime (see People v Berry, 50 AD3d 1047, 1048 [2008]; People v James, 2 AD3d751 [2003]).
The defendant's contention that the Supreme Court failed to administer the oathrequired by CPL 270.15 (1) (a) to prospective jurors is unpreserved for appellate review(see People v Lyons, 94AD3d 1020, 1020 [2012];People v Cobb, 77 AD3d 673, 673 [2010]). The defendant did not draw theSupreme Court's attention to the alleged error and has failed to present an adequaterecord in support of his claim (see People v Lyons, 94 AD3d at 1020; People v Hampton, 64 AD3d872, 877 [2009]; cf. Peoplev Hoffler, 53 AD3d 116, 121 [2008]).
The defendant's contention that he was deprived of the effective assistance ofcounsel is based, in part, on matter appearing on the record and, in part, upon matteroutside the record, and thus constitutes a "mixed claim of ineffective assistance" (People v Maxwell, 89 AD3d1108, 1109 [2011]). In this case, it is not evident from the matter appearing on therecord that the defendant was deprived of the effective assistance of counsel (cf.People v Crump, 53 NY2d 824, 825 [1981]). Since the defendant's claim ofineffective assistance of counsel cannot be resolved without reference to matter outsidethe record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim inits entirety (see People vCrosby, 133 AD3d 681 [2015]; People v Donovan, 133 AD3d 615 [2015]; People v Adamson, 131 AD3d701, 703 [2015]). Chambers, J.P., Hall, Austin and Barros, JJ., concur.