| People v Sims |
| 2017 NY Slip Op 00197 [146 AD3d 820] |
| January 11, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Shiroide Sims, Appellant. |
Laurette Mulry, Riverhead, NY (Alfred J. Cicale of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, NY (Glenn Green of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County(Braslow, J.), rendered April 16, 2014, convicting him of manslaughter in the firstdegree, upon his plea of guilty, and imposing sentence which included a fine in the sumof $5,000. The appeal brings up for review the denial, after a hearing, of that branch ofthe defendant's omnibus motion which was to suppress identification testimony.
Ordered that the judgment is modified, on the law and as a matter of discretion in theinterest of justice, by vacating the provision of the sentence imposing a fine in the sum of$5,000; as so modified, the judgment is affirmed.
The defendant was arrested after three eyewitnesses identified him in a photo array asthe person who shot and killed the victim. The defendant was charged with, among othercrimes, murder in the second degree. The defendant moved, inter alia, to suppressidentification testimony on the ground that the identification procedure—a photoarray—was unduly suggestive. After a hearing, the County Court denied thatbranch of the defendant's omnibus motion. The defendant subsequently pleaded guilty tomanslaughter in the first degree, and sentence was imposed, which included a fine in thesum of $5,000.
At a suppression hearing on a defendant's motion challenging a pretrial identificationprocedure as unduly suggestive, the People "have the initial burden of going forward toestablish the reasonableness of the police conduct and the lack of any unduesuggestiveness" (People v Chipp, 75 NY2d 327, 335 [1990]; see People v Busano, 141AD3d 538, 539 [2016]). This is "a 'minimal' burden of 'production' "(People v Busano, 141 AD3d at 539, quoting People v Ortiz, 90 NY2d533, 538 [1997]). " 'If the People meet their burden of production, the burdenshifts to the defendant to persuade the hearing court that the procedure wasimproper' " (People v Busano, 141 AD3d at 539, quoting People v Holley, 26 NY3d514, 521 [2015]).
Here, the People met their initial burden through the testimony of the police officerwho conducted the photo array with the three eyewitnesses on the same day, at threeseparate locations, and through admission into evidence of the photo array, whichrevealed that the individuals depicted were sufficiently similar to the defendant inappearance such that there was little [*2]likelihood thathe would be singled out for identification based on particular characteristics (see People v Staton, 138 AD3d1149, 1150 [2016]; Peoplev Burroughs, 98 AD3d 583, 584 [2012]; People v Hewitt, 82 AD3d 1119, 1120 [2011]). Since thePeople met their initial burden through this evidence, contrary to the defendant'scontention, it was not necessary for them to present testimony from one of the identifyingwitnesses and the police officer who compiled the photo array, and the defendant neversought to call these witnesses at the hearing (cf. People v Cherry, 26 AD3d 342 [2006]; People vSokolyansky, 147 AD2d 722 [1989]).
The defendant's contention that the fine imposed as part of his sentence should bevacated because the County Court did not indicate that the plea of guilty was negotiatedwith terms that included a fine is unpreserved for appellate review (see CPL470.05 [2]; People vGregory, 140 AD3d 1088 [2016]; People v Nilsen, 129 AD3d 994 [2015]). Nevertheless, wereach the issue in the exercise of our interest of justice jurisdiction.
The County Court erred in imposing a fine, since there is no indication in the pleaminutes that the defendant's plea of guilty was negotiated with terms that included a fine(see People v Gregory, 140AD3d 1088 [2016]; Peoplev Roberts, 139 AD3d 1092 [2016]). The sole relief requested by the defendantfor this error is modification of his sentence to vacate the provision imposing a fine, andthe People consent to the sentence being so modified. Under the circumstances, we deemit appropriate to vacate the provision of the defendant's sentence imposing a fine in thesum of $5,000 (see People vGregory, 140 AD3d 1088 [2016]; People v Roberts, 139 AD3d 1092 [2016]).
The defendant's remaining contentions are without merit. Balkin, J.P., Austin, Sgroiand LaSalle, JJ., concur.