PEOPLE v. RUBI (2005)

Judgments, Supreme Court, New York County (Gregory Carro, J. at hearing;  John A.K. Bradley, J. at jury trial and sentence), rendered September 30, 2003, convicting defendant of two counts of burglary in the second degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 24 years to life, unanimously affirmed.

 The court properly denied defendant's suppression motion.   The prompt, on-the-scene showup identification was not rendered unduly suggestive by the officer's remark to the witness that the police had a suspect or by the fact that defendant was handcuffed and under police guard (see e.g. People v. Smith, 271 A.D.2d 332, 707 N.Y.S.2d 154 [2000], lv. denied 95 N.Y.2d 871, 715 N.Y.S.2d 226, 738 N.E.2d 374 [2000];  People v. Edwards, 259 A.D.2d 343, 687 N.Y.S.2d 317 [1999], lv. denied 93 N.Y.2d 969, 695 N.Y.S.2d 55, 716 N.E.2d 1100 [1999] ).

The court's Sandoval ruling balanced the appropriate factors and was a proper exercise of discretion (see People v. Hayes, 97 N.Y.2d 203, 738 N.Y.S.2d 663, 764 N.E.2d 963 [2002];  People v. Walker, 83 N.Y.2d 455, 458-459, 611 N.Y.S.2d 118, 633 N.E.2d 472 [1994];  People v. Pavao, 59 N.Y.2d 282, 292, 464 N.Y.S.2d 458, 451 N.E.2d 216 [1983] ).   Defendant's theft-related convictions were highly relevant to his credibility.

 The court properly exercised its discretion in denying defendant's mistrial motion made after a police witness briefly mentioned defendant's parole status.   The court's prompt and thorough curative instructions were sufficient to prevent any prejudice (see People v. Santiago, 52 N.Y.2d 865, 437 N.Y.S.2d 75, 418 N.E.2d 668 [1981] ).

Defendant's constitutional challenge to the procedure under which he was sentenced as a persistent violent felony offender is unpreserved for appellate review and, in any event, is without merit (see People v. Rosen, 96 N.Y.2d 329, 728 N.Y.S.2d 407, 752 N.E.2d 844 [2001], cert. denied 534 U.S. 899, 122 S.Ct. 224, 151 L.Ed.2d 160 [2001] ).   Defendant's mandatory sentence as a persistent violent felony offender was triggered solely by his prior convictions (see Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 [1998] ).

We perceive no basis for reducing the sentence.