| People v Hosannah |
| 2019 NY Slip Op 09288 [178 AD3d 1074] |
| December 24, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v David Hosannah, Appellant. |
Michael A. Fiechter, Bellmore, NY, for appellant.
Madeline Singas, District Attorney, Mineola, NY (Kevin C. King and John B. Latella ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Meryl J.Berkowitz, J.), rendered September 28, 2016, convicting him of robbery in the first degree (twocounts), robbery in the second degree (three counts), and criminal possession of a weapon in thethird degree, after a nonjury trial, and imposing sentence. The appeal brings up for review thedenial, after a hearing pursuant to a stipulation in lieu of motions (Jerald S. Carter, J.), of thesuppression of identification evidence.
Ordered that the judgment is affirmed.
The defendant's contention that the police lacked probable cause to arrest him is unpreservedfor appellate review (see CPL 470.05 [2]; People v Williams, 160 AD3d 665, 666 [2018]). In any event, therecord demonstrates that the police had probable cause to arrest the defendant (see People vWilliams, 160 AD3d at 666; People v Bellow, 255 AD2d 450 [1998]; People vHaynes, 251 AD2d 595 [1998]).
Showup procedures are permissible "even in the absence of exigent circumstances, whenthey are spatially and temporally proximate to the commission of the crime and not undulysuggestive" (People v Johnson, 104AD3d 705, 705 [2013] [internal quotation marks omitted]). Here, the hearing testimony ofthe police officers demonstrated that the showup procedures occurred in close spatial andtemporal proximity to the commission of the crimes for the purpose of securing a prompt andreliable identification (see People vSantana, 159 AD3d 926, 927 [2018]; People v Santiago, 132 AD3d 1015, 1016 [2015]). Further, contraryto the defendant's contention, the possibility that the eyewitnesses may have overheard the policeradio transmissions regarding the defendant's arrest did not render the showup procedures undulysuggestive. Notably, two of the eyewitnesses testified that they did not hear the actual content ofthe transmissions. And, while the third eyewitness testified that he overheard that the individualsbeing detained had been found wearing sunglasses, the hearing testimony established that thedefendant was not wearing sunglasses at the time of the showup (see People v Huerta, 141 AD3d602, 603 [2016]). The showup procedures also were not rendered unduly suggestive simplybecause the eyewitnesses knew that the police had a suspect in custody (see People v Baez, 175 AD3d 553[2019]; People v Bartlett, 137 AD3d806 [2016]; People v Charles,110 AD3d 1094, 1096 [2013]; People v Berry, 50 AD3d 1047, 1048 [2008]).
In any event, as the Supreme Court found, the eyewitnesses' observations of the defendantduring the robberies gave them an independent source upon which to make their in-courtidentifications (see People v Currie,117 AD3d 1074, 1075 [2014]; People v Henderson, 170 AD2d 532, 533 [1991];People v Clark, 155 AD2d 548 [1989]). The defendant's contention that the eyewitnesses'in-court identification of him was "tainted" because the eyewitnesses did not mention his facialscar is without merit. The defendant describes his scar as being situated approximately one inchunder the far corner of his left eye and approximately an inch in length from his eye toward theback of his head. The eyewitnesses' descriptions of the defendant, after observing him while inclose proximity, in a well-lit setting, for a period of 30 seconds to 2 minutes, were sufficientlydetailed and accurate as to the defendant's race, gender, height, build, and age. Moreover, theeyewitnesses testified at the pretrial hearing that the defendant was wearing sunglasses at thetime of the commission of the crimes (see People v Small, 110 AD3d 1106, 1106-1107 [2013]; Peoplev Allah, 283 AD2d 436, 436 [2001]). Further, while the defendant had an absolute right towaive his presence at the independent source phase of the Wade hearing (UnitedStates v Wade, 388 US 218 [1967]), the hearing court's refusal to allow the defendant toabsent himself in these circumstances was harmless error (see Matter of Eric W., 182AD2d 439 [1992]; People v Clark, 155 AD2d 548, 549 [1989]).
The defendant contends that his waiver of the right to a jury trial was invalid. The defendant'sclaim "is to be proved, if at all, by facts outside the trial record in a proceeding maintainableunder CPL 440.10" (People v Johnson, 51 NY2d 986, 988 [1980]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's remaining contentions do not require reversal. Rivera, J.P., Austin, Duffyand Barros, JJ., concur.