PEOPLE v. DE LOS SANTOS (2026)

Judgment, Supreme Court, New York County (Brendan T. Lantry, J.), rendered November 14, 2023, convicting defendant, after a jury trial, of robbery in the third degree, and sentencing him, as a second felony offender, to a term of 31/212 to 7 years, unanimously affirmed.

The court properly denied defendant's motion to suppress the showup identification, which was “conducted in close geographic and temporal proximity to the crime” (People v. Ortiz, 90 N.Y.2d 533, 537, 664 N.Y.S.2d 243, 686 N.E.2d 1337 [1997]) and “as part of an unbroken chain of fast-paced events” (People v. Vincenty, 138 A.D.3d 428, 429, 28 N.Y.S.3d 686 [1st Dept. 2016], lv denied, 27 N.Y.3d 1156, 39 N.Y.S.3d 390, 62 N.E.3d 130 [2016]).  The showup was not rendered unduly suggestive by the fact that defendant was handcuffed and held by officers, while additional officers and police vehicles remained in the vicinity, as the officers believed the suspect may have been armed (see People v. Wright, 42 N.Y.3d 708, 720, 228 N.Y.S.3d 96, 252 N.E.3d 1093 [2024];  People v. Gilford, 16 N.Y.3d 864, 924 N.Y.S.2d 314, 948 N.E.2d 920 [2011];  People v. Scott, 223 A.D.3d 626, 627, 204 N.Y.S.3d 69 [1st Dept. 2024], lv denied 41 N.Y.3d 985, 210 N.Y.S.3d 747, 234 N.E.3d 363 [2024]), and “the overall effect of the allegedly suggestive circumstances was not significantly greater than what is inherent in any showup” (People v. Brujan, 104 A.D.3d 481, 482, 960 N.Y.S.2d 421 [1st Dept. 2013], lv denied 21 N.Y.3d 1014, 971 N.Y.S.2d 496, 994 N.E.2d 392 [2013]).  The overall explanation by the officer who transported the witness to the showup did not “render the ensuing identification suggestive, because this type of information merely conveyed what a witness of ordinary intelligence would have expected under the circumstances” (People v. Gatling, 38 A.D.3d 239, 240, 831 N.Y.S.2d 157 [1st Dept. 2007] [internal quotation marks omitted], lv denied 9 N.Y.3d 865, 840 N.Y.S.2d 894, 872 N.E.2d 1200 [2007]).

The verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007];  see also People v. Baque, 43 N.Y.3d 26, 229 N.Y.S.3d 62, 254 N.E.3d 606 [2024]).  The record supports the jury's conclusion that defendant threatened the immediate use of physical force to compel delivery of the property (see Penal Law §§ 155.05, 160.00, 160.05;  see also People v. Woods, 41 N.Y.2d 279, 283, 392 N.Y.S.2d 400, 360 N.E.2d 1082 [1977]).  The bank's video surveillance footage and the teller's testimony established that defendant entered the bank wearing a hoodie with the hood raised, reflective blue sunglasses, and a blue surgical mask, and he handed the teller a note demanding money, which “can only be reasonably viewed as implied threats of force” (People v. McDowell, 200 A.D.3d 502, 157 N.Y.S.3d 463 [1st Dept. 2021], lv denied 38 N.Y.3d 952, 165 N.Y.S.3d 458, 185 N.E.3d 979 [2022];  see also People v. Cook, 206 A.D.3d 1236, 1238–1239, 170 N.Y.S.3d 305 [3d Dept. 2022]).  Moreover, immediately after passing the teller the note, defendant reached into his pocket and leaned forward, creating the impression that he had a ready weapon (People v. Sandson, 173 A.D.3d 905, 906, 99 N.Y.S.3d 883 [2d Dept. 2019], lv denied 33 N.Y.3d 1108, 106 N.Y.S.3d 692, 130 N.E.3d 1302 [2019]).  Under these circumstances, the “chain of actions” committed by defendant demonstrated that there was a threat of immediate physical force (People v. Villanueva, 148 A.D.3d 210, 214, 46 N.Y.S.3d 615 [1st Dept. 2017], lv denied 29 N.Y.3d 1088, 64 N.Y.S.3d 178, 86 N.E.3d 265 [2017]).

We perceive no basis for reducing the sentence.