| People v Hawkins |
| 2018 NY Slip Op 08370 [167 AD3d 1071] |
| December 6, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Andrew T. Hawkins, Appellant. |
Michael P. Graven, Owego, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (William D. VanDelinder of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the County Court of Chemung County (Rich Jr., J.),rendered March 11, 2016, convicting defendant upon his plea of guilty of the crime of robbery inthe first degree.
Defendant was charged in a multicount indictment with robbery in the first degree, assault inthe second degree and grand larceny in the fourth degree stemming from an incident where hestole money and caused an injury to the victim. Prior to trial, defendant moved to suppress awitness's identification of him from a photo array. After a Wade hearing, County Courtdenied the suppression motion. Defendant thereafter pleaded guilty to robbery in the first degreein full satisfaction of the indictment but did not waive his right to appeal or to challenge CountyCourt's suppression hearing order. County Court sentenced defendant, as a second violent felonyoffender, to a prison term of 14 years, to be followed by five years of postrelease supervision.Defendant appeals. We affirm.
Defendant argues that County Court erred in denying his motion to suppress. We disagree.An unduly suggestive pretrial identification procedure violates the due process rights of theaccused (see People v Chipp, 75 NY2d 327, 335 [1990], cert denied 498 US 833[1990]). "Although the People bear the burden of establishing the reasonableness of the policeconduct and the lack of any undue suggestiveness in a pretrial identification procedure, it is thedefendant who bears the ultimate burden of proving that the procedure was unduly suggestive"(People v Cole, 150 AD3d1476, 1478 [2017] [internal quotation marks, brackets and citations omitted], lvdenied 31 NY3d 1146 [2018]; see People v Chipp, 75 NY2d at 335; People v Casanova, 152 AD3d875, 876 [2017], lv denied 30 NY3d 948 [2017]; People v Reynoso-Fabian, 134 AD3d 1141, 1145 [2015]).
At the Wade hearing, an investigator with the City of Elmira Police Departmenttestified that he met with the witness in order to show her a photo array. The investigator gavethe witness some preliminary instructions and the witness indicated that she understood them.The investigator then showed the witness the array, which consisted of six photos, and asked herwhether she recognized anyone, the number of the person if she did recognize someone and fromwhere she recognized that person.[FN*] The investigator stated that, when presentingthe array to the witness, he did not direct her attention to any particular photo. The witnessreviewed the array and, within 10 seconds, identified defendant. In view of the foregoing, we findthat the People satisfied their burden of demonstrating that the police conduct was reasonable andthe lack of undue suggestiveness in the pretrial identification procedure (see People v Pleasant, 149 AD3d1257, 1258 [2017], lv denied 30 NY3d 1022 [2017]; People v Wells, 141 AD3d 1013,1017 [2016], lv denied 28 NY3d 1189 [2017]; People v Matthews, 101 AD3d 1363, 1364 [2012], lvdenied 20 NY3d 1101 [2013]; People v Lawal, 73 AD3d 1287, 1287-1288 [2010]).
We are unpersuaded by defendant's assertion that the photo array was unduly suggestive.County Court found that the photographs looked "relatively similar" in that they all depictedblack males similar in age and with similar hair and they all had facial hair. Our review of thephoto array confirms the suppression court's findings, which are entitled to great weight (seePeople v Parker, 257 AD2d 693, 694 [1999], lv denied 93 NY2d 1024 [1999]). Assuch, defendant's motion to suppress the pretrial identification was properly denied (see People v Marryshow, 162 AD3d1313, 1314-1315 [2018]; People vDavis, 18 AD3d 1016, 1018 [2005], lv denied 5 NY3d 805 [2005]; People vTaylor, 300 AD2d 746, 747-748 [2002], lv denied 2 NY3d 746 [2004]). Defendant'sremaining contentions, to the extent not specifically discussed herein, have been considered andare without merit.
Garry, P.J., Devine, Clark and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Another investigator, who hadcompiled the array, waited in the police vehicle while the witness was being interviewed.