PEOPLE v. LOCKWOOD (2000)

 Defendant appeals from a judgment of County Court convicting him upon a jury verdict of robbery in the second degree (Penal Law § 160.10[2] [a] ).   Defendant moved to suppress the identification testimony of the victim on the ground that the showup identification procedure was improper.   The court properly denied the motion.   The showup identification procedure was conducted less than a half hour after the incident and defendant was transported only a block and a half from the point where he was taken into custody (see, People v. Ortiz, 90 N.Y.2d 533, 537, 664 N.Y.S.2d 243, 686 N.E.2d 1337;  People v. Clark, 262 A.D.2d 1051, 692 N.Y.S.2d 274, lv. denied 93 N.Y.2d 1016, 697 N.Y.S.2d 574, 719 N.E.2d 935;  People v. Woods, 238 A.D.2d 900, 660 N.Y.S.2d 764, lv. denied 90 N.Y.2d 912, 663 N.Y.S.2d 524, 686 N.E.2d 236).   Although the identification procedure employed, displaying defendant to the victim in handcuffs in the back seat of a patrol car, “presses judicial tolerance to its limits” (People v. Duuvon, 77 N.Y.2d 541, 545, 569 N.Y.S.2d 346, 571 N.E.2d 654), the procedure was justified in the interest of prompt identification (see, People v. Blanche, 227 A.D.2d 935, 644 N.Y.S.2d 114, affd. 90 N.Y.2d 821, 660 N.Y.S.2d 375, 682 N.E.2d 976).

 Contrary to defendant's contention, the evidence of physical injury is legally sufficient to support the conviction (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   The victim testified that defendant punched him repeatedly in the face and kicked at his legs until the victim fell to the ground.   While the victim was on the ground, curled into a fetal position to protect his face, defendant kicked him in the head and body 15 to 20 times.   His face was black and blue from his forehead to his chin, his eyes were partially swollen shut, and his nose and lips were swollen for two weeks.   The victim experienced continuing pain in his right side from the repeated kicks.   Although he did not seek immediate medical attention, he did so a week and a half after the incident because of continued problems.   That evidence, viewed in the light most favorable to the People (see, People v. Malizia, 62 N.Y.2d 755, 757, 476 N.Y.S.2d 825, 465 N.E.2d 364, cert. denied 469 U.S. 932, 105 S.Ct. 327, 83 L.Ed.2d 264), is legally sufficient to establish that the victim sustained a physical injury (see, People v. Clarke, 250 A.D.2d 619, 673 N.Y.S.2d 153, lv. denied 92 N.Y.2d 924, 680 N.Y.S.2d 465, 703 N.E.2d 277;  People v. Morales, 245 A.D.2d 467, 666 N.Y.S.2d 660, lv. denied 92 N.Y.2d 902, 680 N.Y.S.2d 66, 702 N.E.2d 851;  cf., People v. DiStefano, 252 A.D.2d 530, 677 N.Y.S.2d 578, lv. denied 92 N.Y.2d 1031, 684 N.Y.S.2d 496, 707 N.E.2d 451).   The sentence is neither unduly harsh nor severe.

Judgment unanimously affirmed.

MEMORANDUM: