| People v Owens |
| 2018 NY Slip Op 03280 [161 AD3d 1567] |
| May 4, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Hakim Owens, Appellant. |
Michael J. Stachowski, P.C., Buffalo (Michael J. Stachowski of counsel), fordefendant-appellant.
John J. Flynn, District Attorney, Buffalo (Daniel J. Punch of counsel), for respondent.
Appeal from a judgment of the Erie County Court (Kenneth F. Case, J.), rendered September23, 2015. The judgment convicted defendant, upon a jury verdict, of kidnapping in the seconddegree and attempted kidnapping in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofkidnapping in the second degree (Penal Law § 135.20) and attempted kidnapping inthe second degree (§§ 110.00, 135.20). The conviction arises from separateincidents on the same night involving defendant, his codefendant and two female victims (see People v Manning, 151 AD3d1936 [4th Dept 2017], lv denied 30 NY3d 951 [2017]). The People presentedevidence at trial that defendant, dressed as an FBI agent, left a costume party with thecodefendant in an SUV. They encountered a woman (first victim) walking, identified themselvesas FBI agents, and tried unsuccessfully to pull her into the SUV. Defendant and the codefendantleft the scene in the SUV and shortly thereafter encountered another woman (second victim)walking. They again identified themselves as FBI agents, one of them placed the second victim inhandcuffs, and the codefendant lifted her into the back seat of the SUV. While two policeofficers were interviewing the first victim, they noticed the SUV driving past them and pursued itin their patrol car. Defendant stopped the SUV and fled on foot, and another police officerstopped and arrested defendant after pursuing him on foot.
As we previously determined on the appeal of codefendant, having viewed the evidence inlight of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we concludethat the verdict is not against the weight of the evidence (see Manning, 151 AD3d at1938).
We reject defendant's contention that he was deprived of a fair trial when the prosecutorpointed at the defense table as he questioned the first victim concerning her previousidentification of defendant at a showup procedure. Even assuming, arguendo, that theprosecutor's conduct was improper, we conclude that it was not so egregious that it depriveddefendant of a fair trial (see generallyPeople v Terborg, 156 AD3d 1320, 1321 [4th Dept 2017]).
County Court properly denied defendant's motion to suppress the first victim's identificationtestimony on the ground that the showup procedure was unduly suggestive. The Peopleestablished that the showup procedure was conducted in "geographic and temporal proximity tothe crime" (People v Ortiz, 90 NY2d 533, 537 [1997]; see People v Dangerfield, 140 AD3d1626, 1627 [4th Dept 2016], lv denied 28 NY3d 928 [2016]), and the fact that thefirst victim viewed defendant after he got out of a patrol car did not render the procedure undulysuggestive (see People v Wilson,104 AD3d 1231, 1232 [4th Dept 2013], lv denied 21 NY3d 1011 [2013], deniedreconsideration 21 NY3d 1078 [2013]).
Defendant did not challenge the legality of his pursuit, detention or arrest by the policeofficers in his omnibus motion or at the suppression hearing. Thus, his contentions that hispursuit, detention and arrest were illegal, and that the showup identification was the fruit of anillegal arrest, are not preserved for our review (see People v Hudson, 158 AD3d 1087, 1087 [4th Dept 2018]).Present—Whalen, P.J., Centra, Lindley and NeMoyer, JJ.