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PEOPLE of the State of New York, Plaintiff-Respondent, v. Johnny JOHNSON, Defendant-Appellant.
Supreme Court properly determined that the showup identification of defendant was not unduly suggestive. Defendant was apprehended a short distance from the crime scene, and the showup was conducted at the crime scene approximately 40 minutes after the crime was committed (see, People v. Becht, 236 A.D.2d 792, 653 N.Y.S.2d 878, lv. denied 89 N.Y.2d 1088, 660 N.Y.S.2d 382, 682 N.E.2d 983, cert. denied 522 U.S. 887, 118 S.Ct. 220, 139 L.Ed.2d 154; People v. Sanders, 224 A.D.2d 956, 637 N.Y.S.2d 859, lv. denied 88 N.Y.2d 885, 645 N.Y.S.2d 459, 668 N.E.2d 430). Although there was evidence that a five-year-old girl identified defendant as the perpetrator immediately before the showup, the court credited the testimony of complainant that she did not hear anyone identify defendant. “The evaluation of credibility by the hearing court is entitled to great weight and its determination will be not disturbed where, as here, it is supported by the record” (People v. Henry, 242 A.D.2d 877, 662 N.Y.S.2d 967, lv. denied 91 N.Y.2d 834, 667 N.Y.S.2d 688, 690 N.E.2d 497).
The court did not abuse its discretion in declining to impose a sanction upon the People as a result of the failure of the police to comply with the requirements of Penal Law § 450.10 before returning the stolen property to complainant. Defendant has not demonstrated any prejudice resulting from that failure (see, People v. Fair, 254 A.D.2d 768, 678 N.Y.S.2d 759, lv. denied 92 N.Y.2d 1048, 685 N.Y.S.2d 426, 708 N.E.2d 183), and there is no indication that the People acted in bad faith (see, People v. Lathigee, 254 A.D.2d 687, 679 N.Y.S.2d 483, lv. denied 92 N.Y.2d 1034, 684 N.Y.S.2d 499, 707 N.E.2d 454).
Judgment unanimously affirmed.
MEMORANDUM:
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Decided: June 18, 1999
Court: Supreme Court, Appellate Division, Fourth Department, New York.
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