| People v Perez |
| 2017 NY Slip Op 08722 [156 AD3d 507] |
| December 14, 2017 |
| Appellate Division, First Department |
| As corrected through Wednesday, January 24, 2018 |
[*1]
| The People of the State of New York,Respondent, v Jose Perez, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Samuel E. Steinbock-Pratt ofcounsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Malancha Chanda of counsel), forrespondent.
Judgment, Supreme Court, New York County (Jill Konviser, J. at hearing; Arlene D.Goldberg, J. at jury trial and sentencing), rendered October 10, 2013, convicting defendant ofauto stripping in the second degree (two counts), criminal possession of stolen property in thefifth degree (two counts) and possession of burglar's tools, and sentencing him, as a secondfelony offender, to an aggregate term of two to four years, unanimously affirmed.
The hearing court properly determined that the police had probable cause for defendant'sarrest. In the early morning hours, the police received a radioed description of a man breakinginto a car. This description was sufficiently specific, in context, because the close spatial andtemporal proximity between the crime and the police encounter with defendant made it "highlyunlikely that the suspect had departed and that . . . an innocent person of identicalappearance coincidentally arrived on the scene" (People v Johnson, 63 AD3d 518, 518 [2009], lv denied 13NY3d 797 [2009]). In addition to meeting the description, defendant was on a bridge that wasfrequently used as an escape route by persons who committed crimes in that deserted area, heappeared to be "very nervous" and he was clutching a bag to his chest that had wires suspiciouslyprotruding from it.
Defendant did not preserve his claim that the search of his bag was not justified by exigentcircumstances, and the hearing court did not expressly decide, in response to protest, theparticular issue now raised on appeal. The issue at the suppression hearing was whether theofficers had probable cause to arrest defendant, notwithstanding the hearing court's reference to asearch incident to a lawful arrest (seePeople v Miranda, 27 NY3d 931, 932-933 [2016]; see People v Turriago, 90NY2d 77, 83 [1997]). We decline to review this claim in the interest of justice.
The hearing court also properly denied defendant's motion to suppress the ensuing showupidentification. The circumstances of the showup, when viewed in totality, were not undulysuggestive (see generally People v Duuvon, 77 NY2d 541, 545 [1991]; see alsoPeople v Brisco, 99 NY2d 596, 597 [2003] [showup reasonable under the circumstances andnot unduly suggestive where it "took place at the scene of the crime, within an hour of thecommission of the crime, and in the context of a continuous, ongoing investigation"]; People v Brujan, 104 AD3d 481,482 [1st Dept 2013], lv denied 21 NY3d 1014 [2013] [showup not unduly suggestivebecause "the overall effect of the allegedly suggestive circumstances was not significantly greaterthan what is inherent in any showup"]). The additional lighting on the scene was required to aidthe witness in viewing the suspect because the ambient lighting on the bridge was poor, and alsoto assure the officers' safety, due to traffic on the bridge.
To the extent that the existing record permits review, we find that defendant receivedeffective assistance under the state and federal standards (see People v Benevento, 91NY2d 708, 713-714 [1998]; Strickland v Washington, 466 US 668 [1984]). Defendanthas not established [*2]that counsel's decision to rest on therecord at the suppression hearing was unreasonable, or resulted in any prejudice (see People v Almodovar, 142 AD3d916 [1st Dept 2016], lv denied 28 NY3d 1070 [2016]).
We perceive no basis for reducing the sentence. Concur—Friedman, J.P., Kahn,Gesmer, Kern and Moulton, JJ.