| Matter of Shan M. |
| 2016 NY Slip Op 02094 [137 AD3d 1144] |
| March 23, 2016 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Shan M., a Person Alleged to be aJuvenile Delinquent, Appellant. |
Robert Marinelli, New York, NY, for appellant.
Zachary W. Carter, Corporation Counsel, New York, NY (Pamela Seider Dolgowand Tahirih M. Sadrieh of counsel), for respondent.
Appeal from an order of disposition of the Family Court, Kings County (MichaelAmbrosio, J.), dated January 7, 2015. The order adjudicated Shan M. a juveniledelinquent and placed him on probation for a period of 18 months. The appeal brings upfor review a fact-finding order of that court dated October 17, 2014, which, after ahearing, found that Shan M. committed acts which, if committed by an adult, would haveconstituted the crimes of robbery in the second degree, menacing in the third degree,attempted assault in the third degree, and criminal possession of stolen property in thefifth degree, and the denial, after a hearing, of that branch of the appellant's omnibusmotion which was to suppress identification testimony.
Ordered that the order of disposition is affirmed, without costs or disbursements.
The presentment agency filed a petition alleging that the appellant committed actswhich, if committed by an adult, would have constituted the crimes of robbery in thesecond degree, menacing in the third degree, attempted assault in the third degree, andcriminal possession of stolen property in the fifth degree. The appellant moved, inter alia,to suppress testimony regarding a showup identification and any in-court identificationflowing therefrom. Following a Wade hearing (see United States v Wade,388 US 218 [1967]), the Family Court denied that branch of the appellant's motionwhich was to suppress identification testimony.
"While the defendant bears the ultimate burden of proving that a showup procedureis unduly suggestive and subject to suppression, the burden is on the People first toproduce evidence validating the admission of such evidence" (People v Ortiz, 90NY2d 533, 537 [1997]; seePeople v Mack, 135 AD3d 962 [2016]; People v Charles, 110 AD3d 1094, 1095 [2013]). ThePeople's burden consists of two elements. First, the People must "demonstrate that theshowup was reasonable under the circumstances. Proof that the showup was conductedin close geographic and temporal proximity to the crime will generally satisfy thiselement of the People's burden" (People v Ortiz, 90 NY2d at 537; see People v Guitierres, 82AD3d 1116, 1117 [2011]). Second, the People must produce "some evidencerelating to the showup itself, in order to demonstrate that the procedure was not undulysuggestive" (People v Ortiz, 90 NY2d at 537).
[*2] Here, the presentment agency met its initial burden ofestablishing the reasonableness of the police conduct and the lack of unduesuggestiveness (see People vJerry, 126 AD3d 1001, 1002 [2015]; People v Charles, 110 AD3d at1095-1096; People vCalero, 105 AD3d 864, 864-865 [2013]). In opposition, the appellant failed tosatisfy his burden of demonstrating that the showup procedure was "unduly suggestiveand subject to suppression" (People v Ortiz, 90 NY2d at 537; see People vJerry, 126 AD3d at 1002; People v Charles, 110 AD3d at 1096; People vGuitierres, 82 AD3d at 1117).
Accordingly, the Family Court properly denied that branch of the appellant's motionwhich was to suppress identification testimony. Rivera, J.P., Dillon, Chambers andDickerson, JJ., concur.