| People v Thomas |
| 2018 NY Slip Op 05706 [164 AD3d 619] |
| August 8, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Michael Thomas, Also Known as Laquan Smith,Appellant. |
Clinton W. Calhoun III, White Plains, NY, for appellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (Brian R. Pouliot and WilliamC. Milaccio of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County (RobertA. Neary, J.), rendered October 14, 2016, convicting him of robbery in the first degree (twocounts), assault in the first degree (two counts), criminal possession of a weapon in the thirddegree (two counts), and attempted robbery in the first degree, after a nonjury trial, and imposingsentence. The appeal brings up for review the denial, after a hearing, of those branches of thedefendant's omnibus motion which were to suppress identification evidence.
Ordered that the judgment is affirmed.
The defendant was arrested for an attempted robbery in which he brandished a knife, and aseparate robbery in which the victim was stabbed. The victim of the attempted robbery identifiedthe defendant in a showup procedure approximately three hours after the attempted robbery. Thevictim who was stabbed during the robbery identified the defendant from a photographic arraywhich was shown to the victim in the hospital. The defendant was charged with, inter alia,robbery in the first degree (two counts), assault in the first degree (two counts), criminalpossession of a weapon in the third degree (two counts), and attempted robbery in the firstdegree. The defendant moved, inter alia, to suppress both identifications. After a hearing, theCounty Court denied those branches of the motion.
" 'The due-process inquiry for showups calls upon the suppression court to decidewhether the showup was reasonable under the circumstances—i.e., justified by exigencyor temporal and spatial proximity—and, if so, whether the showup as conducted wasunduly suggestive' " (People vCedeno, 27 NY3d 110, 123 [2016], quoting People v Gilford, 16 NY3d 864, 868 [2011]; see People vBrisco, 99 NY2d 596, 597 [2003]; People v Duuvon, 77 NY2d 541, 543 [1991])."Whether a showup is reasonable under the circumstances and/or unduly suggestive are mixedquestions of law and fact" (People v Gilford, 16 NY3d at 868; see People vCedeno, 27 NY3d at 123; People v Brisco, 99 NY2d at 597). There is no bright-lightrule for determining whether the temporal proximity of a showup identification is adequate (see People v Howard, 22 NY3d388, 402 [2013]).
[*2] The record here contains noevidence demonstrating that the showup identification procedure was unduly suggestive.Moreover, the identification occurred within approximately three hours of the incident as part ofan ongoing police investigation (see People v Howard, 22 NY3d at 402). Under thecircumstances presented, we agree with the County Court that the showup identificationprocedure was not unduly suggestive.
"In determining whether a photographic array was unduly suggestive the hearing court shouldconsider whether there was any substantial likelihood that the defendant would be singled out foridentification" (People v Burroughs,98 AD3d 583, 583 [2012] [internal quotation marks omitted]; see People v Chipp,75 NY2d 327, 336 [1990]; People vDunlap, 9 AD3d 434, 435 [2004]). "A photographic display is suggestive when somecharacteristic of one picture draws the viewer's attention to it, indicating that the police havemade a particular selection" (People vCantoni, 112 AD3d 733, 733 [2013] [internal quotation marks omitted]; see People v Redding, 132 AD3d700, 700 [2015]; People vOrtiz, 84 AD3d 839, 840 [2011]; People v Russell, 58 AD3d 759, 760 [2009]; People v Miller, 33 AD3d 728,728-729 [2006]; People v Dunlap, 9 AD3d at 435).
Here, the facts that the defendant's photograph was cropped closer than the other photographsincluded in the array and that he was wearing an orange shirt were not, in themselves, enough toestablish that the photographic array was unduly suggestive (see People v Redding, 132AD3d at 700; People v Plumley,111 AD3d 1418, 1420 [2013]; People v Miller, 33 AD3d at 728-729; People vSullivan, 300 AD2d 689, 690 [2002]). The People further established that the personsdepicted in the other photographs were sufficiently similar in appearance to the defendantthrough the testimony of a detective who explained that he had prepared the array by enteringinformation about the defendant's appearance into a computer program and then selecting fromthe results (see People v Busano,141 AD3d 538, 540-541 [2016]; People v Allen, 118 AD3d 902, 903 [2014]; People v Lago, 60 AD3d 784[2009]). Under these circumstances, we agree with the County Court that the defendant failed tomeet his burden of demonstrating that the photographic array was unduly suggestive (seePeople v Redding, 132 AD3d at 700; People v Plumley, 111 AD3d at 1420;People v Miller, 33 AD3d at 728; People v Sullivan, 300 AD2d at 690).
The defendant's remaining contention is unpreserved for appellate review and, in any event,without merit (see CPL 320.20 [5]; People v Kurkowski, 83 AD3d 1595, 1596 [2011]; People v Staples, 19 AD3d 1096,1097 [2005]; People v Peterkin, 195 AD2d 1015, 1016 [1993]; People v Kloska,191 AD2d 587, 588 [1993]; People v Jackson, 166 AD2d 356 [1990]; People vHampton, 124 AD2d 675, 676 [1986]). Scheinkman, P.J., Cohen, Duffy and Connolly, JJ.,concur.