People v Bartlett

2016 NY Slip Op 01505 [137 AD3d 806]

March 2, 2016

Appellate Division, Second Department

As corrected through Wednesday, April 27, 2016

[*1]

The People of the State of New York,Respondent, v Michael Bartlett, Appellant.

Clare J. Degnan, White Plains, NY (David B. Weisfuse of counsel), forappellant.

James A. McCarty, Acting District Attorney, White Plains, NY (Elizabeth Z. Marcus,Jennifer Spencer, and Laurie Sapakoff of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Westchester County(Adler, J.), rendered January 10, 2014, convicting him of grand larceny in the fourthdegree, criminal possession of stolen property in the fourth degree, criminal possessionof stolen property in the fifth degree, and unauthorized use of a vehicle in the thirddegree, 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 hearing court properly denied that branchof his omnibus motion which was to suppress testimony regarding the showupidentification of him made by a witness. While showup procedures are generallydisfavored, they are permissible, even in the absence of exigent circumstances, when theyare spatially and temporally proximate to the commission of the crime and not undulysuggestive (see People v Ortiz, 90 NY2d 533, 537 [1997]). Here, the showuptook place less than two hours after the crime and approximately 11/2miles away from the crime scene (see People v Rodgers, 6 AD3d 464, 465 [2004]; People v James, 2 AD3d751 [2003]; People v Boswell, 288 AD2d 390 [2001]; People vAndrews, 255 AD2d 328, 329-330 [1998]; People v McBride, 190 AD2d573, 573-574 [1993]; People v West, 128 AD2d 570 [1987]; People vVeal, 106 AD2d 418, 419 [1984]). The People met their initial burden ofestablishing the reasonableness of the police conduct and the lack of unduesuggestiveness in the showup identification through the testimony of the police officerwho transported the witness to the location of the showup, and through the testimony ofthe police officer who arrested the defendant (see People v Ortiz, 90 NY2d at537; People v Cuesta, 103AD3d 913, 915 [2013]; People v Gonzalez, 57 AD3d 560, 561 [2008]).

In turn, the defendant failed to satisfy "the ultimate burden of proving that [the]showup procedure [wa]s unduly suggestive and subject to suppression" (People vOrtiz, 90 NY2d at 537). Contrary to the defendant's contentions, the showup was notrendered unduly suggestive because he was handcuffed and in the presence of uniformedpolice officers (see People vJay, 41 AD3d 615 [2007]; People v Samuels, 39 AD3d 569, 570 [2007]; People v Rice, 39 AD3d567, 568 [2007]; People v Bitz, 209 AD2d 709, 709-710 [1994]), or becausethe police shined the lights of a police vehicle on him (see People v Gilford, 16 NY3d864, 866-868 [2011]; People v Jerry, 126 AD3d 1001, 1002 [2015]; People vMais, 71 [*2]AD3d 1163, 1165 [2010]; People v Siler, 45 AD3d1403 [2007]), or because the witness knew that the police had a suspect (see People v Charles, 110AD3d 1094, 1096 [2013]). Dillon, J.P., Dickerson, Cohen and Duffy, JJ.,concur.