PEOPLE v. BRANCH (2005)

On appeal from a judgment convicting him, upon a jury verdict, of burglary in the third degree (Penal Law § 140.20) and petit larceny (§ 155.25), defendant contends that County Court erred in denying his motion to suppress the in-court identification of a witness who had identified him in a showup identification procedure.   Defendant failed to preserve his contention for our review (see CPL 470.05[2] ) and, in any event, his contention is lacking in merit.   The showup identification procedure was conducted in geographic and temporal proximity to the crime, and “the fact that [defendant] was handcuffed and seated in a patrol car does not render the procedure unduly suggestive” (People v. Robinson, 8 A.D.3d 1028, 1029, 778 N.Y.S.2d 808, affd. 5 N.Y.3d 738, 800 N.Y.S.2d 369, 833 N.E.2d 704;  see generally People v. Duuvon, 77 N.Y.2d 541, 544-545, 569 N.Y.S.2d 346, 571 N.E.2d 654).   In any event, the evidence presented at the suppression hearing established that the witness had seen defendant on numerous prior occasions, and thus the record supports the court's alternative determination that the showup identification was merely confirmatory (see People v. Conner, 15 A.D.3d 843, 844, 789 N.Y.S.2d 377, lv. denied 4 N.Y.3d 885, 798 N.Y.S.2d 730, 831 N.E.2d 975;  People v. Burroughs, 11 A.D.3d 1028, 1029, 784 N.Y.S.2d 742, lv. denied 3 N.Y.3d 755, 788 N.Y.S.2d 671, 821 N.E.2d 976).   Finally, the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: