| People v Huerta |
| 2016 NY Slip Op 05508 [141 AD3d 602] |
| July 13, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Appellant, v Rueben Huerta, Defendant, and Luis Montolla, Fernando Villadaand Oscar Sanchez, Respondents. |
Thomas P. Zugibe, District Attorney, New City, NY (Itamar J. Yeger of counsel), forappellant.
The Law Offices of Beth B. Finkelstein, P.C., New City, NY, for respondent LuisMontolla.
James D. Licata, New City, NY (Ellen O'Hara Woods of counsel), for respondentFernando Villada.
Law Office of Spencer A. Leeds, New City, NY, for respondent Oscar Sanchez.
Appeal by the People from so much of an order of the County Court, RocklandCounty (Thorsen, J.), dated October 27, 2015, as, after a hearing, granted those branchesof the separate omnibus motions of the defendants Luis Montolla, Fernando Villada andOscar Sanchez which were to suppress showup identification evidence.
Ordered that the order is reversed insofar as appealed from, on the law and the facts,those branches of the separate omnibus motions of the defendants Luis Montolla,Fernando Villada and Oscar Sanchez which were to suppress showup identificationevidence are denied, and the matter is remitted to the County Court, Rockland County,for further proceedings consistent herewith.
The defendants Luis Montolla, Fernando Villada and Oscar Sanchez (hereinaftercollectively the defendants), together with a codefendant, Rueben Huerta, were indictedfor attempted gang assault in the first degree and attempted assault in the first degree.Following a combined Wade/Mapp hearing (see United States vWade, 388 US 218 [1967]; Mapp v Ohio, 367 US 643 [1961]), the CountyCourt granted those branches of the defendants' separate omnibus motions which were tosuppress showup identification evidence on the ground that the showup identificationswere unduly suggestive.
The County Court erred in suppressing the showup identifications of the defendants.Under New York law, showup identifications are strongly disfavored but are permissibleif exigent [*2]circumstances require immediateidentification (see People vWard, 116 AD3d 989, 991 [2014]). "Showup procedures 'are permissible, evenin the absence of exigent circumstances, when they are spatially and temporallyproximate to the commission of the crime and not unduly suggestive' "(id. at 991, quotingPeople v Johnson, 104 AD3d 705, 705 [2013]; see People v Gonzalez, 57AD3d 560, 561 [2008]; People v Berry, 50 AD3d 1047 [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]; see People v Ortiz, 90 NY2d 533, 537 [1997]).
Here, the People met their initial burden of establishing that the showupidentification procedure, which was conducted within approximately 30 minutes of thecrime and within three or four blocks of the crime scene, was reasonable under thecircumstances and lacked undue suggestiveness (see People v Mack, 135 AD3d 962 [2016]; People v Hudson, 71 AD3d1046 [2010]; People vBerry, 50 AD3d 1047 [2008]; People v Rodgers, 6 AD3d 464 [2004]; People vTislon, 279 AD2d 488 [2001]; People v Yearwood, 197 AD2d 554 [1993]).The defendants, in turn, failed to satisfy their ultimate burden of proving that the showupidentification procedure was unduly suggestive and subject to suppression. Under thecircumstances of this case, the mere presence of police, patrol cars, headlights, or otherlighting at the scene of the identifications did not render the procedure unduly suggestive(see People v Jerry, 126AD3d 1001 [2015]; Peoplev Peterson, 110 AD3d 1103 [2013]; People v Charles, 110 AD3d 1094 [2013]; People v Mais, 71 AD3d1163, 1164 [2010]). Moreover, the defendants' contention that the showupidentification procedure was unduly suggestive on the ground that the identifying witnessmay have heard a radio transmission indicating that a sneaker was found at the crimescene, and that the codefendant, Rueben Huerta, was wearing mismatched sneakers, iswithout merit. The hearing testimony established that the identifying witness did not relyupon Huerta's mismatched sneakers in identifying the defendants, as the identifyingwitness, upon identifying the three defendants, specifically looked about for a fourthperson he called "Rueben" before Rueben Huerta appeared moments later and wasidentified. To the extent that the defendants contend that the identifying witness'sidentification of them was not reliable because the identifying witness had facial trauma,including swelling around his eyes, and smelled of alcohol, this contention is withoutmerit (see People v Lee, 221 AD2d 255, 256 [1995]).
We decline the People's request that the case be remitted to a different judge of theCounty Court (see generallyPeople v Ramdass, 88 AD3d 1019, 1019-1020 [2011]). Dillon, J.P., Austin,Miller and LaSalle, JJ., concur.